"1^. 



Aop ^ 1898 '^'J 










^ 



GANHOT LEAVE THE LIBRARY. 



Chap. 



Shelf.. 



L4-S^ 



G-lS' 






WYPT) 



COPYRIGHT DEPOSIT. 



LIBRARY OF CONGRESS. 



^:^^^t'^:^'^:'^:'^:^^^^'^'.^^^r^'^'^.'^:^.^^^^^ 



WASHINGTON 

VS, 

JEFFERSON 

THE CASE TRIED BY BATTLE IN 1861-65 

BY 5^/ 

MOSES M.^RANGER 

FORMERLY CAPTAIN i8tH U. S. INFANTRY, LIEUTENANT- 
COLONEL I22D OHIO VOLUNTEER INFANTRY, BREVET 
COLONEL U. S. VOLUNTEERS, AND CHIEF JUDGE 
OF THE SUPREME COURT COMMISSION 
OF OHIO 



" The Constitution according to their interpretation of it would 
be a cipher. ' ' 

" Measures are systematically and pertinaciously pursued, which 
must eventually dissolve the Union, or produce coercion.-' 

Washington 




BOSTON AND NEW YORK 
HOUGHTON, MIFFLIN AND " COMpA' 



If^ 



^4 



APR 1-1898 




1st CO 
1893. 



ir\ 



/ 




COPTEIGHT, 1898, BY MOSES M. GEANGEB 
ALL BIGHTS BESEBVED 



CONTENTS 

PAGE 

I. Introductory Chapter 1 

n. A Constitutional Nation ...... 16 

ni. Congress and the Territory 44 

IV. How Civil War might have been Pre- 
vented 81 

V. Why Eleven States seceded ...... 122 

VI. Secession and the Army ...... 158 

VII. War and Reconstruction 167 



WASHINGTON VERSUS JEFFERSON 



DfTRODUCTORY CHAPTER 

The war of 1861-65 will always com- 
mand the interest of both North and Scjath. 
No one can understand how and why it 
came, or fairly judge the parties to it, with- 
out an accurate knowledge of those facts 
in our history that "make up the case" 
that was then submitted to trial by battle. 
Those facts have not yet been stated in 
" ordinary and concise language," in their 
proper relation to the issue, and to each 
other. 

The " plain people " have not time or 
money to expend upon the many small 
books, each telling a part of those facts, or 
upon any of the large ones that deal with 
the whole matter. Therefore I now try to 
so state them that every one can spare the 



2 WASHINGTON VERSUS JEFFERSON 

money to buy and the time to read my small 
book, and yet find in it so complete an out- 
line of the material facts that all may either 
form a judgment satisfactory to themselves, 
or be aided by my narrative in the selection 
of such matters as seem to them to require 
further investigation. 

My readers will find in the following 
chapters the following facts : In the fall of 
^ 1798 Jefferson wrote in the Kentucky reso- 
/ lutions the Confederate or secession theory of 
' the Constitution, but concealed his author- 
ship. Washington, who held the national, 
or Union theory, condemned the doctrine 
of those resolutions. The last year of his 
life was troubled by fears for his country. 
His last work for that country was to induce 
Patrick Henry, most eloquent of Virginia's 
sons, to pubhcly oppose that doctrine. He 
wrote Henry that if that doctrine should be 
persisted in, either a dissolution of the 
Union or coercion must follow. The basis 
of the doctrine was the claim that the Con- 
stitution was a treaty between sovereign 
states, by whom no arbiter had been agreed 
upon. An examination of the proceedings 
in the Constitutional Convention of 1787 



INTRODUCTORY CHAPTER 3 

shows that that body, having satisfied them- 
selves of the inefficiency of a confederate 
government^ early in its session resolved to 
frame a national government, and later car- 
ried that vote into effect. On motion of a 
Virginia delegate, it voted to estabhsh a 
supreme judiciary to decide all questions 
that might affect the peace between the 
states, and so framed the judiciary article 
as to make the national judiciary " the arbi- 
ter" that Jefferson's resolution declared had 
not been provided. The convention signifi- 
cantly omitted to place in the Constitution 
the words, " Each State retains its sover- 
eignty," with which article II. of the Arti- 
cles of Confederation opened ; discarded the 
" preface " by which those Articles were 
proclaimed as an agreement between thirteen 
specified states; announced the Constitution 
to the world as ordained and established by 
" The People of the United States " for 
themselves and their posterity; vested in the 
national government all the great powers 
usually exercised by sovereign states ; prohib- 
ited the states from using any of those pow- 
ers; and declared that Constitution and the 
laws made pursuant thereto the supreme 



4 WASHINGTON VERSUS JEFFERSON 

law of "the land." Yates and Lansing, dele- 
gates from New York, well-equipped lawyers, 
deemed the instrument national, a departure 
from the confederate form, and therefore 
withdrew from the convention because their 
commissions only authorized them to revise 
and amend the "Articles of Confederation." 

The Supreme Court of the United States 
unanimously decided in 1816, 1819, and 
1824 that the Constitution was not made by 
the states, but by the people of the United 
States ; and that although the states were 
sovereign before they ratified the Constitu- 
tion, they, by that ratification, had ceded 
sovereignty to the nation. 

An examination of the proceedings of 
the convention, and of the Constitution, also 
shows that that body was of the opinion 
that slavery was an evil ; that the national 
government ought to have power to prevent 
its increase ; that the convention expected 
the gradual aboHtion and final extinction of 
the institution ; and gave to the govern- 
ment powers adequate to completely prevent 
its extension. 

In 1787 and 1789 the entire territory of 
the nation was protected from slavery by 



INTRODUCTORY CHAPTER 5 

the ordinance for the government of the 
land northwest of the river Ohio. In 1790 
North Carolina, by the language of her 
deed ceding Tennessee to the nation, re- 
cognized the nation's power to prohibit sla- 
very, by stipulating in the deed that that 
power should not be used in Tennessee. In 
1802 Georgia did the like, in her deed con- 
veying what is now Alabama and Missis- 
sippi. In 1820 the act called the " Missouri 
Compromise " prohibited slavery in almost 
nine tenths of the Louisiana ceded by France, 
leaving to slavery only those tracts that 
were covered by those stipulations of the 
treaty of 1803 that protected the slave- 
holding settlements in their rights and pro- 
perty. 

Neither in 1787 nor in 1820 did our 
nation adopt as a policy a division of its 
territory between freedom and slavery. In 
each instance it forbade slavery in all of its 
territory that was not incumbered by the 
stipulations of the deeds or treaty under 
which it held title. 

John C. Calhoun first introduced into 
leoislation the idea that the Missouri Com- 
promise line was intended for a sort of iso- 



6 WASHINGTON VERSUS JEFFERSON 

thermal limit of slavery, when he negotiated 
terms for the annexation of Texas. 

In 1847 Congress refused to recognize it 
as such a line, and refused to extend it to 
the Pacific Ocean. The North, by a large 
majority, voted to prohibit slavery in the 
Mexican cession, but, believing with Web- 
ster that nature had made impracticable the 
establishment of African slavery in New 
Mexico and Utah, and yielding to the ap- 
prehensions, demands, and threats of the 
South, Congress adopted what are known as 
"the compromise measures of 1850." At 
that time no one claimed that the legislation 
of that year affected in any manner the acts 
of 1820, Missouri Compromise ; of 1845, 
Texas Annexation ; of 1848, Oregon Act ; 
or of 1849, Minnesota Act. Those acts, 
together with the legislation of 1850 (which 
latter acts applied only to New Mexico and 
Utah), fixed the relation to slavery of all 
the nation's land. 

In 1852 the Whig and Democratic na- 
tional conventions pledged their respective 
parties to resist every attempt to reopen the 
slavery question, come from whatever quarter 
it might. Satisfied with the existing laws 



INTRODUCTORY CHAPTER 1 

o£ Congress, which excluded slavery from 
all of the Louisiana cession not included in the 
States of Louisiana, Missouri, Arkansas, and 
the land of the Cherokees, Choctaws, Chick- 
asaws, Creeks, and Seminoles, and from all 
that had been Texas north of 36° 30', and 
with the laws of nature, which practically- 
prohibited the establishment of African sla- 
very in New Mexico and Utah, the North, ex- 
cepting Massachusetts and Vermont, joined 
with the South in placing in the presidential 
chair the South's candidate, Franklin Pierce, 
of New Hampshire, and elected a Congress 
most friendly to that section. Although a 
proposal to repeal one of the existing laws 
of Congress about slavery was plainly "a 
reopening of the slavery question," Presi- 
dent Pierce and Congress followed the lead 
of Senator Atchison, of Missouri, repealed 
the eighth section of the Act of March 6, 
1820, and opened the newly organized ter- 
ritories of Kansas and Nebraska to slavery. 
This aroused the North, whose masses, al- 
though unfriendly to abolition societies and 
their efforts against slavery in states, were 
as strongly opposed to the extension of that 
institution as the great majority of the con- 



8 WASHINGTON VERSUS JEFFERSON 

vention of 1787 and the leading statesmen 
of that time, both North and South, had been. 
The House chosen in 1854 elected a Repub- 
lican speaker, and that party gained largely 
in the Senate in 1854 and 1856. The Cin- 
cinnati Democratic platform of 1856, by its 
pledge to allow the people of the territories 
a free and fair vote on their constitutions, 
retained conservative New Jersey, Pennsyl- 
vania, Indiana, and Illinois, and thereby 
elected Mr. Buchanan, and gave him a Con- 
gress Democratic in both houses. His pledge, 
through Governor Walker, to secure for the 
legal electors of Kansas a fair vote upon her 
Constitution, quieted that disturbed territory, 
and so affected elections elsewhere that the 
Republican plurality in Ohio fell from over 
15,000 in 1855 to 1503 in 1857. 

The "obiter dicta" of Chief Justice Taney 
and his four associates in the Dred Scott 
case caused the South to demand congres- 
sional legislation for the protection of sla- 
very in the territories. Yancey and others, 
who had long desired and labored for seces- 
sion, induced Alabama Democracy to in- 
struct her delegates to withdraw from the 
Charleston Convention in case that body 



INTRODUCTORY CHAPTER 9 

would not resolve in favor of a cono-ressional 
slave code for the territories. Althoiio^li 
the convention accompanied its refusal to 
so resolve by a pledge to conform to such 
decisions upon the rights of slaveholders as 
the Supreme Court had made^ or should 
thereafter make, Alabama, with South Caro- 
lina, Arkansas, and the Gulf states, with- 
drew, and so divided the party as to make 
Repubhcan success probable. Yancey and 
the veteran secessionists believed the ulti- 
mate success of their revolutionary plans 
assured and were joyous. The demand for 
a congressional slave code caused additional 
masses of old-fashioned anti-slavery men, 
who were not abolitionists, to vote for i\Ir. 
Lincoln, and added the conservative states 
of the North to the Repubhcan column. 

In 1858 Mr. Lincoln, in his debate with 
Senator Douglas at Jonesboro, Illinois, had 
declared that it was the duty of Congress to 
enact all laws necessary to protect and en- 
force every constitutional right ; that the 
Constitution gave the South a right to an 
e:ffective fugitive slave law ; that under his 
oath an anti-slavery congressman was bound 
to vote to make such a law effective ; and 



10 WASHINGTON VERSUS JEFFERSON 

added that he would so vote if in Congress. 
This speech was pubhshed and read every- 
where at the North for two years^ and by 
the nomination and election of Mr. Lincoln 
the Eepublican party indorsed his opinion. 

Although Massachusetts, Vermont, Michi- 
gan, and Wisconsin legislatures had passed 
'' personal liberty bills " that conflicted with 
the national Constitution, the state courts in 
which cases under them were tried held 
these laws unconstitutional except in Wis- 
consin. In 1858 the Supreme Court of the 
United States. reversed the Wisconsin judg- 
' ments, and from that time the fugitive slave 
law was so effectively enforced that in 1860 
the number of escaped slaves was twenty per 
cent, less than in 1850, although the num- 
ber of slaves had been increased by about 
500,000. These facts were not generally 
known or understood at the South. The 
astute secession conspirators, by newspapers, 
speeches, pamphlets, by talk everywhere, 
assured their people that the Republican 
party was fanatical in its opposition to sla- 
very ; that the fugitive slave law was nullified 
at the North ; that the next attack would 
be upon slavery in the. states ; and that the 



INTRODUCTORY CHAPTER 11 

South could not with honor or safety remain 
in the Union. 

In fact, the Kansas struggle for four years 
between the South with a territorial slave 
code recognized by two presidents as in full 
force in Kansas, with the influence of the 
national government, the aid of its officers 
and troops on the one side, and Northern 
immigration backed by Northern sympathy 
on the other, had resulted in a vote on 
August 2, 1858, of 11,300 against coming 
in as a slave state, and only 1,788 for so 
coming. The census of 1860 showed only 
2 slaves in Kansas, 15 in Nebraska, 29 in 
Utah, and none in New Mexico. The last 
two territories had been open to slavery for 
ten years, the other two for six years. 
These facts demonstrated that congressional 
prohibition was no longer necessary to pre- 
vent the conversion of a free territory into 
a slave state. 

The election of November 6, 1860, gave 
to the Republicans the presidency and vice- 
presidency for four years from March 4, 
1861, and to the Democrats sufficient ma- 
jorities in both houses of Congress to control 
legislation for the first two years. The 



12 WASHINGTON VERSUS JEFFERSON 

South had a majority in the Democratic 
caucus of each house. If no state had at- 
tempted secession, it was certain that no 
'^ legislation unfavorable to the South could 
f be enacted for two years. As Mr. Lincoln's 
popular vote lacked about 900,000 of a 
majority, clear-headed statesmen knew that 
unless the South and the Democratic Con- 
gress should commit some folly, the elec- 
tions of 1862 would increase that party's 
majority in both Senate and House. Mr. 
Lincoln as President was publicly committed 
to an effective enforcement of the fugitive 
slave law. The Senate, controlled by South- 
ern senators, would not confirm any unwor- 
thy or unsuitable of&cials for duty in any 
Southern state. His opinions and those of 
his party on slavery were the same as those 
held by " the Fathers " of the Revolution, 
of the Constitution, and of the days of 
Washington, Jefferson, and Madison. His 
character and his abilities were held in high 
repute by all who knew him. The Congress 
that assembled in December, 1860, although 
made RepubHcan by Southern withdrawals, 
organized the territories of Dakota, Colo- 
rado, and Nevada by bills drafted by the 



INTRODUCTORY CHAPTER 13 

Breckinridge senator from Missouri, and 
submitted to the states an amendment to 
the national Constitution securing slavery in 
each state forever against everything save 
the vote of the state itself. 

Common sense, calmly examining the 
situation now, plainly sees that the appre- 
hensions and excitement of the Southern 
people in 1860-61 were groundless, that 
they could not and would not have suffered 
in honor, in property, or in prosperity by 
reason of Mr. Lincoln's occupancy of ^he 
executive chair; that if their senators and 
representatives had taken and kept their 
seats, by 1862 the whole country would 
have resumed the quiet of 1852 ; that in 
fact the legislative war about slavery had 
been fought out ; that the antagonistic ele- 
ments in the Kepublican party would have 
separated, because the Kansas election of 
1858 and the choice of Mr. Lincoln in 1860 
had practically put an end to the extension 
of slavery ; that the North would again have 
devoted itself to business and the South 
have resumed its influential role in politics. 

If the veteran workers for secession had 
permitted the Southern people to confer 



14 WASHINGTON VERSUS JEFFERSON 

together even in a convention of the Gulf 
states, Georgia, and South Carohna, hefore 
any state seceded, I believe able debaters 
would have made the situation so clear that 
no ordinance of secession would have been 
passed even by South Carolina. Those 
veteran workers also so believed. So they 
everywhere charged that delay was dishon- 
orable as well as dangerous. South Carolina 
seceded and, amid unreflecting excitement, 
the Gulf states and Georgia followed in 
single file. The elections of 1860 and 1861 
proved that all the other slave states were 
decidedly of opinion that they ought not to 
secede; fully two thirds of the South so 
thought. The aforesaid veteran workers 
counted upon the faith of those eight states 
in Jefferson's resolutions of 1798. That 
faith forbade any attempt to compel the 
people of a seceding state to obey the laws 
of the United States. When war came, that 
faith forced Virginia, North Carolina, Ten- 
nessee, and Arkansas to secede. The South 
was the victim of those veteran secession 
workers. 

When war came, as the Constitution had 
vested in the nation the power to wage war 



INTRODUCTORY CHAPTER 15 

without limitation, all the laws of war be- 
came apphcable as soon as the nation recog- 
nized the Confederate States as belligerents. 
This recognition, in law, dated from April 
19, 1861, the day a blockade of the ports 
in the seceding states was proclaimed. As 
the war ended in the surrender of all the 
armies and warhke positions and supplies of 
the Confederacy, without any treaty or con- 
vention stipulating what political rights the 
states and people who for four years had 
been "public enemies" should retain, the 
laws of war vested in the nation the power 
to determine what those political rights 
should be, subject only to one hmitation ; to 
wit, they must be recognized as ha\ang all 
the rights of residents upon unorganized 
territory of the nation. 

How ignorance of this application of the 
laws of war affected reconstruction is dis- 
cussed in my concluding chapter. 



II 

A CONSTITUTIONAL NATION 

In the autumn of 1798 Washington, ex- 
President of the United States and Lieuten- 
ant-General commanding the army, was at 
his home, Mount Vernon. Jefferson was 
Vice-President and active in leadership of 
the anti-Federahsts. A very hitter political 
war was being waged between the adminis- 
tration and opposition parties about the 
" aHen and sedition " laws. Mr. Justice 
Chase, in the United States Circuit Court, 
had held said laws constitutional. Jeffer- 
son feared that the Supreme Court of the 
United States would also so hold. He there- 
fore determined upon a claim that would 
enable his party to maintain its position, 
that those laws were unconstitutional, even 
against such a decision by that court. He 
wrote a series of resolutions ; gave them to 
George Nicholas, of Kentucky, who pledged 
himself "to never make known the author^" 



A CONSTITUTIONAL NATION 17 

and to introduce them in tlie Kentucky- 
legislature. With slight change they passed 
that body on November 10, 1798. 
I quote the first : — 

1. Resolved, That the several states composing the 
United States of America are not united on the prin- 
ciple of unlimited submission to their general govern- 
ment ; but that, by a compact under the style and 
title of a Constitution for the United States, and of 
Amendments thereto, they constituted a general gov- 
ernment for special purposes, delegated to that gov- 
ernment certain definite powers, reserving, each state 
to itself, the residuary mass of rights to their o^n 
self-government ; and ^ that whensoever the general 
government assumes undelegated powers, its acts are 
unauthoritative, void and of no force ; that to this 
compact each state acceded as a state, and is an in- 
tegral party ; its co-states forming, as to itself, the 
other party ; that the government created by this 
compact was not made the exclusive or final judge of 
the extent of the powers delegated to itself ; since 
that would have made its discretion, and not the Con- 
stitution, the measure of its powers ; but that, as in 
all other cases of compacts among powers having no 
common judge, each party has an equal right to judge 
for itself, as well as of infractions as of the mode and 
measure of redress. 

Late in December, 1798, Washington 
learned of the adoption of this resolution 
by the Kentucky legislature. On December 



18 WASHINGTON VERSUS JEFFERSON 

25 he wrote to Lafayette, " The Constitu- 
tion, according to their interpretation of it, 
would be a cipher." See vol. xi. Washing- 
,i ton's Works, p. 378. On January 15, 1799, 
he wrote to Patrick Henry urging him to 
take an active part in the then approaching 
political campaign in Virginia, and to op- 
pose the doctrine of this resolution. Henry 
did so, and in his speech at Charlotte Court 
House declared in substance that Virginia 
had no more right to secede from the Union 
than Charlotte County to secede from Vir- 
ginia. 

Washington further wrote to Henry, re- 
ferring to the course of Jefferson and the 
anti-Federalists, " Pleasures are systemati- 
colly and pertinaciously pursued which 
TJiust eventually dissolve the Union, or pro- 
duce coercionJ^ Vol. xi. Washington's 
Works, p. 398. 

This prophecy of Washington was ful- 
filled in 1860-1865. 

The issue between Washington and Jef- 
ferson as to the nature, meaning, and effect 
of the Constitution was finally decided in 
the " trial by battle " in favor of Washing- 
ton. This decision was also in exact ac- 



A CONSTITUTIONAL NATION 19 

cordance with the plain meaning of the 
Constitution itself. Believing that the peo- 
ple ought to possess a brief outline of the 
argument upon which the national construc- 
tion is based, I submit the following : — 

In May and June, 1787, delegates from 
twelve states (Rhode Island sent none) met 
at Philadelphia, commissioned, as most of 
them were, to revise and amend " The Ar- 
ticles of Confederation." 

The utter inefficiency of that form of 
government had become apparent. Af^pr 
conference, consultation, and discussion, the 
delegates almost unanimously agreed that 
it would be useless to attempt to revise or 
amend its articles. The great majority of 
the delegates were of opinion that, notwith- 
standing their commissions were to revise 
and amend the Articles of Confederation, 
they ought to confer together and recom- 
mend to the states a form of government 
that would remove the evils of the then 
existing system. They felt assured, and the 
result proved that they were right, that no 
state would censure them for such recom- 
mendation. 

On May 30 Randolph of Virginia moved 



20 WASHINGTON VERSUS JEFFERSON 

the adoption of a resolution drafted by 
Gouverneur Morris reading thus : " Re- 
solved, that a national^ government ought 
to be established, consisting of a siqoreme 
legislative, executive, and judiciary." This 
was adopted by the votes of Massachusetts, 
Pennsylvania, Yu^ginia, North Carohna, 
South Carolina, and Delaware : Ayes 6. 
Connecticut alone voted " no." She after- 
wards concurred. New York was divided. 
The delegates from New Hampshire, New 
Jersey, Maryland, and Georgia had not ar- 
rived. This decision was carried into effect. 
A national government, supreme executive, 
legislative, and judicial, was created. 

To emphasize the difference between the 
old confederation and the new nation, they 
adopted the great preamble, written by the 
same Gouverneur Morris, instead of the pre- 
face that stood before the Articles of Con- 
federation. That preamble and that preface 
I now present side by side. To read and 
compare them is to see that the Constitution 
was intended to be a very different creation 
from the Confederation. 

1 All italics in quotations are mine. — The Author. 



A CONSTITUTIONAL NATION 21 

The Preface. The Preamble. 
Articles of Confedera- We, the people of the 
tion and perpetual union United States, in order to 
between the states of New form a more perfect union, 
Hampshire, Massachusetts establish justice, insure 
Bay, Rhode Island and domestic tranquillity, pro- 
Providence Plantations, vide for the common de- 
Connecticut, New York, f ense, promote the general 
New Jersey, Pennsylva- welfare, and secure the 
nia, Delaware, Maryland, blessings of liberty to our- 
Virginia, North Carolina, selves and our posterity. 
South Carolina and Geor- do ordain and estabhsh 
gia. this Constitution for the 

United States of America. 

The old was presented as the league, or 
treaty, made by and between thirteen states ; 
the new appeared as the act of a people ; 
one people, not contracting, agreeing, stipu- 
lating, but ordaining and esfahlishing. 
Lansing and Yates, good lawyers, delegates 
from New York, withdrew because in their 
opinion the Constitution made a national 
and not a confederate government ; they 
felt bound by their commissions to revise 
and amend " The Articles of Confedera- 
tion " and not to take part in framing a 
different form of government. This with- 
drawal confirms our view. 

It is true that the same thirteen states 



22 WASHINGTON VERSUS JEFFERSON 

consented to and ratified the Constitution. 
That consent was necessary in order that the 
old government might end without revolu- 
tion. While the convention was in session 
there was " a people of Virginia/' " a peo- 
ple of Massachusetts/' and the like, but no 
" people of the United States." The con- 
vention, by submitting to the states the 
Constitution and preamble worded as they 
were, asked them to consent that the inhab- 
itants of all should thenceforward be " the 
people of the United States/' and that the 
great instrument itself should always and 
everywhere be held and taken as " ordained 
and established" by that one people, and 
that the Constitution and laws made pur- 
suant thereto should be " the supreme law 
of the land ; " so that there should be one 
people and one land. The states by their 
ratifications consented to all this. Hence 
the Constitution is the result of agreement 
between the states, precisely as a deed is 
the result of an agreement between a ven- 
dor and a purchaser. Our national Constitu- 
tion is the executed and completed charter, 
deed, grant, conveyance, by which the states 
ceded to, and forever vested in, the nation 



A CONSTITUTIONAL NATION 23 

the national powers enumerated therein. 
Each state was a grantor in this deed, or 
charter, and the nation, the people of the 
United States, was the sole grantee. All the 
rights and powers granted by this instru- 
ment passed forever from each grantor to 
that grantee. Its terms were absolute and 
unconditional. The grants were for the peo- 
ple of the United States and their posterity. 
Jefferson's resolution charged the great 
and wise members of the Constitutional 
Convention with gross carelessness, neglect, 
and folly by its assertion that " no common 
judge " was provided for, and that in 1798 
there were sixteen separate judges, each en- 
titled to decide finally and absolutely as to 
the vaHdity or invahdity of any act of Con- 
gress. If that assertion had been true, then 
indeed would the Constitution be a cipher. 
Either Delaware or Ehode Island could re- 
solve that the national excise or tariff law was 
invalid, and prevent the collection of tax or 
duty within its limits. As the Constitution 
expressly provided that such levies must be 
uniform throughout the country, if collec- 
tion could not be made in Rhode Island, it 
could not be made anvwhere. Common 



24 WASHINGTON VERSUS JEFFERSON 

sense will tell the absurdity of attempting 
/ to govern a country with sixteen or more 
independent supreme courts. Chaos only 
could result from their conflicting decisions. 
The same result must needs follow whether 
said final decisions were made by courts^ 
state legislatures, or state conventions. 

It is impossible to believe that Washing- 
ton, Franklin, or Koger Sherman set his 
hand to a constitution like the one painted 
by Jefferson in the last half of his first 
Kentucky resolution. It is not strange that 
Jefferson required from Nicholas a pledge 
" to never make known the author." Even 
Jefferson's self-assurance could not induce 
him to meet Washington while known as 
the promulgator of such a charge upon the 
members of that convention and their work. 

Jefferson's words were, " having no com- 
mon judge." In the convention a Virginia 
delegate moved the following : " A national 
judiciary ought to be established . . . with 
jurisdiction to hear and determine . . . 
cases in which foreigners and citizens, a citi- 
zen of one state and a citizen of another 
state, may be interested ; cases which respect 
the collection of the national revenue ; im- 



A CONSTITUTIONAL NATION 25 

peacliments of national officers ; and ques- 
tions loJiich may involve the national id eace 
and harmony.''^ Thus Virginia herself pro- 
posed to make the national judiciary " the 
common judge." The convention decided 
to adopt Virginia's proposal, and made sec- 
tion 2 of article III. read thus : " The judi- 
cial power shall extend to all cases in law 
and equity, arising under this Constitution, 
the laws of the United States, and treaties 
made, or which shall be made, under their 
authority ; to all cases affecting ambassad(^*s, 
other public ministers, and consuls ; to all 
cases of admiralty and maritime jurisdiction ; 
to controversies to which the United States 
shall be a party ; to controversies between 
two or more states ; between a state and 
citizens of another state ; between citizens 
of different states ; between citizens of the 
same state claiming lands under grants of 
different states ; and between a state, or 
the citizens thereof, and foreign states, citi- 
zens or subjects." 

Every claim by the United States to col- 
lect a tax, duty, or excise, to enforce any 
of its laws or treaties, to prevent the en- 
forcement of any invalid state law, is neces- 



26 WASHINGTON VERSUS JEFFERSON 

sarily, if resisted or disputed, " a contro- 
versy to which the United States is a party." 
Of such controversies the national judiciary 
was given full jurisdiction, was made the 
" common judge." Yet, in the face of these 
plain, express words, words adopted by the 
convention after Virginia had asked it to 
make the national judiciary the arbiter, the 
final judge of " questions which may in- 
volve the national peace and harmony," Jef- 
ferson made use of Nicholas and the Ken- 
tucky legislature of 1798 to promulgate the 
mistaken statement that there was no com- 
mon judge. 

Moreover the convention was famihar with 
the Articles of Confederation. Their com- 
missions made it their duty to study those 
articles. Read articles II., IX., and XIII. 
The Constitution omitted the express reser- 
vation of state sovereignty made by article 
II., and provided no substitutes for parts of 
IX. and XIII. except the judiciary article. 
The omission of that express reservation 
and the terms of the judiciary article give 
strong support to Washington's construction, 
and equally strong evidence against that of 
Jefferson. 



A CONSTITUTIONAL NATION 27 

In 1793 the Eleventh Amendment took 
from said courts jurisdiction of "any suit 
at law or equity, commenced or prosecuted 
against one of the United States by citizens 
of another state, or by citizens or subjects 
of any Foreign State." This, however, left 
unimpaired full jurisdiction of " Controver- 
sies to which the United States shall be a 
party," and " Controversies between two or 
more states." 

While the ratifications of the Constitution 
were pending before the state conventidfcis, 
"The FederaHst," see No. LXXX., page 
^^S, expressly called attention to this judi- 
cial article, and argued, " Controversies be- 
tween the nation and its members or citi- 
zens can only be properly referred to the 
national tribunals. Any other plan would 
be contrary to reason, to precedent, and to 
custom." 

The state conventions ratified the Con- 
stitution with the judicial article clear and 
plain in its meaning, and with full know- 
ledge that it made the national court the 
common judge, the preserver of the peace. 
The words " jurisdiction of controversies to 
which the United States shall be a party, 



28 WASHINGTON VERSUS JEFFERSON 

controversies between two or more states/' 
granted jurisdiction of all such controver- 
sies. Sucli is tlie established rule of con- 
struction. Such words, unaccompanied by 
any words of exception, proviso, condition, 
or negation, have precisely the same mean- 
ing as if the word " all " had preceded the 
word " controversies " in each clause. The 
Supreme Court of the United States so de- 
cided in Rhode Island v. Massachusetts, 12 
Peters' Reports, pages 657, 721, at January 
Term, 1838. 

A Virginia delegate, thinking of the 
" Federal plan," had suggested that in case 
any state should be delinquent, the force 
of the whole nation ought to be exerted 
against her. Madison said, " To use force 
against a state is more like a declaration of 
war than an infliction of punishment, and 
would be considered by the party attacked 
a dissolution of all previous contracts. / 
therefore ho]3e that a iiational system, with 
full power to deal with individuals, loill 
he framed, and the resource he thus ren- 
dered unnecessary J^ 

Madison's hope was realized; a national 
system was adopted and established, with 



A CONSTITUTIONAL NATION 29 

full power to compel the obedience of evert/ 
inhabitant, with no obligation to await the 
consent or act of any state. If, on the 
other hand, the Constitution had established 
a confederate government, the provision 
urged by the unnamed Virginian for com- 
pelHng each state to furnish its quotas of 
money and men would have been necessary. 

In this national government the Consti- 
tution vested the following sovereign pow- 
ers : — 

(1) To raise money by tax, duty, excise, 
loan, to provide for the common defense 
and general welfare of the United States ; 

(2) To coin money and regulate its value ; 

(3) To declare and wage war ; (4) To raise, 
support, and govern armies ; (5) To organ- 
ize, arm, and discipline the militia ; to call 
it out to execute the laws of the Union, 
suppress insurrections, and repel invasions ; 
(6) To provide, maintain, and govern a 
navy; (7) To regulate commerce with for- 
eign nations, among the several states, and 
with the Indian tribes; (8) To regulate nat- 
uralization and bankruptcies ; (9) To grant 
patents and copyrights ; (10) To fix the 
standard of weights and measures ; (11) To 



30 WASHINGTON VERSUS JEFFERSON 

establish post offices and post roads; (12) 
To punish counterfeiting, piracies, felonies 
on high seas, and offenses against interna- 
tional law ; (13) To legislate for the capi- 
tal district not exceeding ten square miles ; 
(14) To make regulations as to the territory 
and other property of the Union ; (15) To 
make all laws which shall be necessary and 
proper for carrying into execution the fore- 
going powers and all other powers vested 
by this Constitution in the government of 
the United States, or in any department or 
officer thereof ; (16) To propose, by a vote 
of two thirds of each house of Congress, to 
amend any provision of the Constitution 
except the one giving to each state an equal 
representation in the Senate; such amend- 
ments to become parcel of the Constitution 
when ratified by the legislatures of three 
fourths of the states. 

All of the foregoing powers were vested 
by the Constitution in the nation absolutely, 
without limitation as to time, and were and 
are to be exercised by " the people of the 
United States and their posterity." By the 
terms of the Constitution, the people of 
the United States were to make known their 



A CONSTITUTIONAL NATION 31 

will through theh^ legislative body, the Con- 
gress, in legislation, and through two thirds 
of each house, and three fourths of the 
state legislatures in amending the Constitu- 
tion, while to the judicial power of the 
nation was given full jurisdiction to decide 
all questions arising " under this Constitu- 
tion, the laws of the United States, and 
treaties made, or which shall be made under 
their authority," including expressly " Con- 
troversies to which the United States shall 
be a party," and " Controversies between 
two or more states," and finally " this Con- 
stitution and the laws of the United States 
which shall be made in pursuance thereof ; 
and all treaties made, or which shall be 
made under the authority of the United 
States, shall he the siq^reone law of the 
land; and the judges in every state shall 
be bound thereby, anything in the Consti- 
tution or laws of any state to the contrary 
notioithstanding .^^ 

While the Constitution thus created a 
powerful nation, it prohibited each state 
from doing certain acts and from exercis- 
ing certain powers. Section 10 of article X. 
provides thus : — 



32 WASHINGTON VERSUS JEFFERSON 

No state shall enter into any treaty, alli- 
ance, or confederation ; shall grant letters 
of marque or reprisal ; shall coin money ; 
shall emit bills of credit ; shall make any- 
thing but gold and silver coin a tender in 
payment of debts ; shall pass any bill of 
attainder or ex post facto law ; shall pass 
any law impairing the obligation of con- 
tracts ; shall grant any title of nobiHty ; 
shall without the consent of the Congress 
lay any imposts or duties on imports or 
exports, except what may be absolutely ne- 
cessary for executing its inspection laws ; 
and the net produce of all duties and im- 
posts laid by any state on imports or ex- 
ports shall be for the use of the Treasury 
of the United States ; and all such laws 
shall be subject to the revision and control 
of the Congress ; and no state shall without 
the consent of Congress lay any duty of 
tonnage, keep troops or ships of war in time 
of peace, enter into any agreement or com- 
pact with another state or a foreign power, 
or engage in war unless actually invaded, 
or in such imminent dangler as will not 
admit of delay. 

Whatever doubt may exist as to whether 



A CONSTITUTIONAL NATION 33 

or not each state was sovereign prior to the 
estabhshment of the Constitution, there can- 
not be any reasonable doubt that from and 
after the estabhshment of the Constitution 
each of the states ceased to be a sovereign 
state, because it had granted and ceded its 
sovereign powers to "the people of the 
United States/' to the new nation. 

Secession writers claim that the words in 
article YII. reading, " The ratification of 
the conventions of nine states shall be suffi- 
cient for the establishment of this Consti- 
tution between the states so ratifying the 
same," made it a confederation. Those 
words did not alter any part of the frame- 
work of the government ; they left it na- 
tional, deaHng wdth individual citizens, not 
with states ; ordained by one people ; made 
the supreme law for one land, without limi- 
tation in time, and subject to no condition. 

Secession writers also urge that the equal 
representation of the states in the Senate 
makes the government confederate. Vice- 
President Stephens of the Confederacy 
(1861-65) was fond of styling senators 
"ambassadors," and the Senate the "House 
of Ambassadors." The important element 



34 WASHINGTON VERSUS JEFFERSON 

is not " the equal number." In congresses 
of sovereigrn states each one sends one or 
more ambassadors as it may choose, and 
changes them at pleasure. The important 
elements are the manner of voting, the 
effect of votes, and the power of the state 
over its so-called ambassador. 

In the confederacy (1777-89) each state 
appointed such delegates, in such numbers 
as it pleased, and could recall any or all of 
them at pleasure. When voting, the count 
was made by states, and not by voices. 
Under the Constitution since 1789 each 
senator holds for the full term for which 
he has been elected. The state cannot re- 
call or remove him. He may vote or not 
vote as he pleases. His vote counts one in 
full effect and power, whether he casts it 
for or against the wishes of his state. There 
are now 45 states. All the senators from 
22 states may be absent or not voting ; the 
46 senators from the other 23 states, under 
section 5, article I. form a quorum, and are 
competent to do business. Any law voted 
for by the senators from 12 states would be 
as valid as if the whole Senate had voted for 
it, because 21 is a majority of 46, a major- 



A CONSTITUTIONAL NATION 35 

ity of a quorum. Moreover, in such a case, 
the senators from 16 states could ratify a 
treaty, override a veto, or submit to the 
states an amendment of the Constitution. 
Is it not plain that the Senate is not a con- 
federate body ; that no senator is an ambas- 
sador from his state ; that each senator is 
simply a member of a national legislative 
body? In the confederacy of 1777-89 each 
state retained complete control of its re- 
presentatives in the Congress. Under the 
Constitution no state has any control o^r 
its senators and representatives. Nothing 
but death, resignation, or a vote of Senate 
or House can vacate any seat. This fact 
demonstrates how radical a chano-e the con- 
vention of 1787 made in the nature of our 
government. 

The Tenth Amendment is also much 
quoted by statesmen of the secession school. 
It reads : " The powers not delegated to 
the United States by the Constitution, nor 
prohibited by it to the states, are reserved 
to the states respectively, or to the people." 

That amendment did not and could not 
restore to any state any of the powers al- 
ready ceded to the nation. Instead of each 



36 WASHINGTON VERSUS JEFFERSON 

state remaining a sovereign, it was and is a 
subject state, subject to the nation in all 
the powers transferred to it, and in all the 
prohibitions imposed upon every state. The 
same instrument had made every citizen of 
every state a citizen of the nation. The 
Constitution made the nation's laws para- 
mount to those of the state. Each citizen 
was and is bound to obey the nation's con- 
stitutional laws even where they conflict 
with the statutes of his state, and the na- 
tion's courts are expressly empowered to 
finally decide as to the constitutionality of 
every statute, whether of state or nation. 
As Madison hojjed would be done, the na- 
tion's government was given " full power to 
deal directly with individuals." No state 
of&cer can rightfully interfere between a 
constitutional United States law and its vio- 
lator. All who so interfere will share the 
crime and the liability to punishment. No 
so-ealled state law can in such a case pro- 
tect the offenders. The only safe resort 
would be to the national court clothed by 
the Constitution with jurisdiction to deter- 
mine such a question. 

Under Washington's construction the 



A CONSTITUTIONAL NATION 37 

Constitution was a complete and symmet- 
rical system of government. It stated in 
clear, plain, well-chosen words what powers 
were thenceforward to belong to the nation, 
what powers no state should exercise, what 
acts no state should do. In unmistakable 
words it made the national Constitution and 
laws paramount to the constitutions and 
laws of every state, and provided for the 
judicial determination of every question that 
could possibly arise by a bench of independ- 
ent judges holding office for life or duiing 
their good behavior, selected by the people's 
chosen president and confirmed by senators 
representing all the states, — judges who 
coidd not win such selection and confirma- 
tion without years of testimony to their 
abiHty, legal information, and integrity ; 
judges who could not render a corrupt de- 
cision without forfeiting a reputation more 
valuable than life, and without liability to 
impeachment before the national Senate. 
No safer, no sounder tribunal has yet been 
created by man. 

On the other hand, under Jefferson's 
theory of the Constitution, a majority of 
one vote, no matter how ignorant, unwise, 



38 WASHINGTON VERSUS JEFFERSON 

or prejudiced that voter might be, in a state 
convention could deny to the nation any 
one or more of the powers claimed by it 
under the Constitution. By such a vote 
Massachusetts could negative a law appro- 
priating money to enable commerce to freely 
ascend the Mississippi ; South Carolina a 
tariff law ; Virginia a law forbidding sla- 
very in a northwest territory ; Florida a law 
to create a nursery for manning our navy 
by granting fishing bounties; Georgia a 
law for constructing a passage for the im- 
mense commerce of the lakes through the 
outlet of Lake Superior. Under Jefferson's 
theory secession was unnecessary. If the 
Constitution is only a league or treaty be- 
tween sovereign states, each one having full 
right to finally decide that a law of Con- 
gress is not authorized by the Constitution, 
the state cannot lose its rights as a member 
of the league by refusing to obey an invalid 
law. Under Jefferson's teaching, Calhoun 
and South Carolina had full right to nul- 
lify any law of Congress that a South Caror 
lina convention by a majority of one or 
more votes had declared to be unconstitu- 
tional, and to still claim to be one of the 
United States. 



A CONSTITUTIONAL NATION 39 

Washington and Henry died in 1799. 
Madison, never strong enough to stand 
alone, had, under the influence of Wash- 
ington and Hamilton, done great service in 
framino^ and estabhshins: the Constitution. 
By 1798 parties had changed. Jefferson 
had taken the lead in Virginia ; Madison 
felt too weak and timid to oppose him. 
Unwilling to adopt the precise words of the 
Kentucky resolution, he somewhat changed 
its language before offering it for adoption 
in the Virginia legislature. When, %m 
1832, he learned how Calhoun and South 
Carolina were practicing what Jefferson had 
taught, his utterances made known that he 
did not so understand the doctrine. In the 
fullness of time Washington's vindication 
came, but Virginia and the south land suf- 
fered terribly because they had spurned his 
teaching. 

Patrick Henry had opposed the ratifica- 
tion of the Constitution because he did not 
favor the establishment of so national a 
government, but after it had been estab- 
lished, after Virginia had ratified it, he in- 
sisted that it should be obeyed. 

When civil war came, in 1861, another 



40 WASHINGTON VERSUS JEFFERSON 

great Yirginian, George H. Thomas, fol- 
lowed the example of Patrick Henry, and 
used all his powers to maintain the suprem- 
acy of the national laws. As an of&cer in 
the division commanded by him in 1861-62, 
in Kentucky, Tennessee, and Mississippi, I 
learned to honor and admire him. 

In January, 1861, another great Virgin- 
ian, Robert E. Lee, wrote to bis son thus : 
\y " Secession is nothing but revolution. The 
^ framers of our Constitution never exhausted 
so much labor, wisdom, and forbearance in 
its formation, and surrounded it with so 
many guards and securities, if it was in- 
tended to be broken by every member of 
the confederacy at will. It is intended for 
' perpetual union,' so expressed in the pre- 
amble, and for the establishment of a gov- 
ernment and not a eom'paet ; which can 
only be broken by revolution, or the con- 
sent of all the people in convention assem- 
bled. It is idle to talk of secession." — See 
General A. L. Lono-'s " Memoirs of R. E. 
Lee," page 88. When he wrote that letter, 
Robert E. Lee believed as Washington and 
Henry had done. In April, 1861, he be- 
came a follower of Jefferson and of Calhoun, 



A CONSTITUTIONAL NATION 41 

and fought to maintain " secession." Did 
he change his opinion, or, war having be- 
gun at Sumter, was he unwilHng to fight the 
South ? 

I will close this branch of our subject 
with quotations from adjudications made by 
the arbiter chosen on Virginia's motion, as 
I have stated, speaking by the voice or with 
the concurrence of another great Virginian, 
John Marshall, who was chief justice of the 
United States from 1801 to 1835. 

" The Constitution of the United St^es 
was ordained and established, 7iot hy the 
states in their sovereign capacities^ but (as 
the preamble of the Constitution declares) 
by the people of the United States " (Mar- 
tin V, Hunter, 1 Wheaton, 304, a. d. 
1816). 

" The Constitution of the United States 
is to be regarded as emanating, not from 
the states as governments, but directly from 
the people. The convention which framed 
the Constitution was indeed elected by the 
state legislatures, but the instrument, when 
it came from the hands of the convention, 
was a mere proposal, without obligation or 
pretensions to it. It was then submitted to 



42 WASHINGTON VERSUS JEFFERSON 

the people. They acted upon it in the only- 
manner in which they can act effectively 
and wisely on such a subject, by assembling 
in conventions. These conventions neces- 
sarily assembled in their respective states, 
but their action did not, on that account, 
cease to be the action of the people them- 
selves or become the action of the state 
governments " (McCulloch v. Maryland, 4 
Wheaton, 316, 403, a. d. 1819). 

'' Notwithstanding the people had pre- 
viously created state governments, they had 
the power to organize a distinct and inde- 
pendent government over the whole Union" 
(Ibid.). The whole court concurred : Mar- 
shall, C. J., Washington, Johnson, Living- 
ston, Todd, Duvall, and Story, justices. 

" It is true that, anterior to the formation 
of the government of the United States, the 
separate states were sovereign, independent, 
and connected only by a league ; but when 
they converted their league into a govern- 
ment, when they converted their congress 
of ambassadors into a legislature, the whole 
character in which the states ai^i^ear un- 
derwent a change " (Gibbons v. Ogden, 9 
Wheaton, 187, a. d. 1824). The whole 



A CONSTITUTIONAL NATION 43 

court, including the judges above named, 
and also Thompson, a newly appointed jus- 
tice, concurred. 

The judgment in the "trial by battle," 
A. D. 1861-65, affirmed these rulings of 
the Supreme Court of 1801-25. In the 
time between 1865 and 1898, that court has 
in numerous cases restated to the world, as 
now undisputed, the same national doctrine 
that Washington and Henry made the sub- 
ject of their last instructions to their coun- 
trymen. % 



Ill 

CONGRESS AND THE TERRITORY 

It will be germane to our subject to trace, 
down to A. D. 1860, the history of the mat- 
ters then presented by the seceding states 
as the causes of their attempts to secede. 
Of these, slavery was the most prominent. 
As the nation never claimed any right to 
interfere with slavery in any state until 
after the Thirteenth Amendment to the 
Constitution had become a part of that in- 
strument, on December 18, 1865, save only 
under the laws of war during the Rebellion, 
the matter in dispute as to slavery included 
only the extent of the nation's power and 
right to legislate on that subject for any or 
all territories of the United States, prior to 
their admission to statehood. 

Section 3 of article IV. contained the 
following words : " New states may be ad- 
mitted by the Congress into this Union." 
" The Congress shall have power to dispose 



CONGRESS AND THE TERRITORY 45 

of and to make all needful rules and regula- 
tions respecting the territory or other pro- 
perty belonging to the United States." 

After France had ceded Louisiana, Con- 
gress organized what is now the State of 
Louisiana as the Territory of Orleans. Be- 
cause the great majority of the inhabitants 
were of foreign races unaccustomed to self- 
government, the Act of Congress vested the 
selection of the first territorial legislature 
in the President and Senate of the United 
States. A question having been raised^ as 
to the validity of this act, the Supreme 
Court of the United States held that under 
the above quoted section 3, the act was 
valid : that Congress might, if it should so 
choose, itself act as the legislature of the 
territory. 

In March, 1857, the case of Dred Scott 
V. Sandford, 19 Howard Supreme Court Re- 
ports, 399, etc., was decided by a divided 
court. 

By a vote of seven to two, the court held 
that Dred Scott was not a citizen of the 
United States ; that therefore he had no 
right to begin that suit in a United States 
court ; and that the court had no jurisdic- 



46 WASHINGTON VERSUS JEFFERSON 

tion of tlie case. So holding, by well- 
settled rules of law, as to which all courts, 
both state and national, agree, the court had 
no power to pronounce any judgment upon 
any other question in that case. Every- 
thing said by any of the seven judges as to 
any matter, except the one that related to 
the court's jurisdiction of that case, was 
only the statement of the professional opin- 
ion of each of them as a lawyer, was not 
entitled to obedience as a judgment, but to 
have the respect due to the individual repu- 
tation of the judge as a lawyer. 

Justices McLean of Ohio, Catron of Ten- 
nessee, and Curtis of Massachusetts held 
that said section 3 gave to Congress full 
power to legislate for the territory as to all 
matters not prohibited by the Constitution 
or treaties in force. McLean and Curtis 
held that Congress had full power to pro- 
hibit slavery in the territory. Catron held 
that the terms of the treaty with France 
denied this power to Congress as to the 
ceded land. He arofued that each slave- 
holder, resident in Louisiana at the time of 
the treaty, and his heirs and assigns, had a 
right to reside with his slaves in any part of 



CONGRESS AND THE TERRITORY 47 

it until such part became a state, and the 
state prohibited slavery. He forgot that 
no resident under France could open a new 
settlement unless at a time, place, and under 
terms to be fixed by France ; that we suc- 
ceeded to France's place, and held the like 
rio^ht to determine such matters. So the 
treaty merely protected slaveholders' rights 
in the then settled districts ; that is, in the 
land now within Louisiana, JMissouri, and 
Arkansas ; and Congress had full control as 
to all the rest of the ceded land. % 

Justice Nelson of New York expressed no 
opinion upon the said power of Congress, 
or as to the construction of said section 3. 
He held that Dred Scott's voluntary return 
to JMissouri with his master made him, 
under Missouri law, a slave, and that the 
Act of March 6, 1820, the Missouri Com- 
promise, did not apply to him, and was not 
involved in the case. 

The other five justices concurred in hold- 
ing that said section 3 appKed only to terri- 
tory that belonged to the United States at 
the time of the establishment of the Consti- 
tution ; that Congress could not make rules 
and regulations as to territory subsequently 
acquired. 



48 WASHINGTON VERSUS JEFFERSON 

This strange construction, thus announced 
as mere " obiter dicta " by Chief Justice 
Taney and Justices Wayne, Daniel, Grier, 
and Campbell, in effect charged upon the 
great men of the convention of 1787 such 
lack of even ordinary foresight that, while 
framing a government with power to make 
treaties, of which extension of boundary is 
a very usual subject, they gave it no power 
over any land that might be acquired by 
any treaty. 

Judge Catron's opinion shows that he 
had such confidence in the application of 
section 3 to the Louisiana purchase, that he 
had sentenced men to be hanged under laws 
whose validity depended upon it. 

At October term, 1879, the power to 
legislate for a territory came again before 
the national Supreme Court, which unani- 
mously held as follows (see Waite, C. J., 
in Bank v. County of Yankton, 101 U. S. 
Supreme Court Reports, 132, 133) : — 

" It is certainly now too late to doubt the 
power of Congress to govern the terri- 
tories. There have been some differences 
of opinion as to the particular clause of the 
Constitution from which the power is de- 



CONGRESS AND THE TERRITORY 49 

rived, but that it exists has always been 
conceded. The Act to adapt the ordinance 
to provide for the government of the terri- 
torv northwest of the river Ohio to the re- 
qubements of the Constitution (1 Stat. 50) 
is chapter 8 of the first session of the first 
Congress ; and the ordinance itself was in 
force under the Confederation when the Con- 
stitution went into effect. All territory 
within the jurisdiction of the United States 
not included in any state must necessarily 
be governed by or under the authorityvof 
Congress. The territories are but political 
subdivisions of the outlying dominion of 
the United States. Their relation to the 
general government is much the same as 
that which counties bear to the respective 
states, and Congress may legislate for them 
as a state does for its municipal organiza- 
tions." 

The " obiter dicta " of Chief Justice Taney 
and his four associates were based upon 
Jefferson's doctrine of 1798, and in opposi- 
tion to that of Washington. They treated 
the United States as a mere trustee holding 
title to land for the use of the states resjoec- 
tively, instead of as a government holding 



50 WASHINGTON VERSUS JEFFERSON 

for its people ; a nation iiolding title in fee- 
simple ; holding the power, and ST:jbject to 
the duty of enacting such legislation touch- 
ing the same as would not contravene any 
of the limitations of the Constitution^ and 
would result in promoting the prosperity 
and happiness of the people as a whole com- 
munity. 

The members of the Constitutional Con- 
vention of 1787 almost unanimously thought 
slavery a serious and perilous evil. The 
Congress of the Confederation, in that same 
year, published to the world its opinion by 
placing in the ordinance of 1787 for the 
government of the territory northwest of 
the river Ohio the words "there shall be 
neither slavery nor involuntary servitude in 
the said territory otherwise than in the pun- 
ishment of crimes, whereof the party shall 
have been duly convicted." 

In the convention, in August, 1787, 
George Mason, of Virginia, said : " Slavery 
discourages arts and manufactures. The 
poor despise labor when performed by 
slaves. They prevent the emigration of 
whites who really enrich and strengthen a 
country. They produce the most pernicious 



CONGRESS AND THE TERRITORY 51 

effect on manners. Every master of slaves 
is born a petty tyrant. They bring the 
judgment of Heaven on a country. I hold 
it essential in every point of view that the 
general government shall have power to 
prevent the increase of slavery." 

The convention felt sure that slavery 
would be eventually eradicated, and were 
unwilling to admit the word itself into the 
great instrument which they intended should 
remain for unnumbered generations a memo- 
rial of their statesmanship. They gugnted 
in broad, definite terms full power of legis- 
lation as to the national territory, power to 
make " all needful rules and regulations 
respecting the territory." In addition to 
power to forbid slavery in any other terri- 
tory as fully as had been done that same 
year for all northwest of the Ohio River, 
they gave to Congress full right to prohibit 
"the migration or importation of such per- 
sons as any of the states now existing shall 
think proper to admit " at any time after 
the year 1807, coupled with permission to 
levy a tax or duty of ten dollars per head 
prior to 1808. This was intended to stop 
the introduction of slaves from Africa or 
any place outside of the United States. 



52 WASHINGTON VERSUS JEFFERSON 

If our constitutional fathers had shared 
the opinions of the secessionists of 1860^ or 
of the disciples of John C. Calhoun or Jef- 
ferson Davis, that the United States was a 
trustee under obligation to secure for sla- 
very equal chances with freedom in populat- 
ing our territories, they would have never 
placed section 9 in article I. of the Consti- 
tution. 

Mr. Alexander H. Stephens, in his "War 
between the States," remarks that in order 
to enable the South to compete with the 
North in settling the territories, the prohibi- 
tion of the slave trade with Africa should 
have been suspended, at least for a time. 
It is plain that without free access to that 
field for " slave emigration," while the wide 
world was open for " free emigration," the 
former could not expect to win. It is 
equally plain that the makers of the Consti- 
tution did not intend to aid slavery in the 
race, and had no thought of making Con- 
gress a trustee for slaveholders. They did 
intend to leave that institution undisturbed 
in the states within which it then existed, 
and they made provision that the mere es- 
cape " of any person held to service and 



CONGRESS AND THE TERRITORY 53 

labor in one state under the laws thereof, 
into another, shall not, in consequence of 
any law or regulation therein, be discharged 
from such service or labor, but shall be 
delivered up on claim of the party to whom 
such service or labor is due." This clause 
gave a right to recover a slave who escaped 
from a slave state to a free state. By 
necessary imphcation it left the law of the 
free state to apply in full force to every 
person whose case did not fall within the 
language of the "fugitive slave clause." 
Therefore no master could take his slave 
into a free state or territory without subject- 
ing him to the law of that free state or 
territory, without making him free. There- 
fore under the Constitution, property in a 
slave did not occupy the same position as 
property in a horse or a cow. Whenever 
the owner of either of the latter chose to 
travel with his animal, he carried with him 
a complete title to it and to its services. 
But his title to his slave was local in its 
nature, limited by the jurisdiction of the 
slave law. There is no word in the Consti- 
tution that imposed upon Congress or upon 
the nation the duty of establishing or legal- 



54 WASHINGTON VERSUS JEFFERSON 

izing slavery anywhere. The only duty in 
aid of slavery that was in any manner recog- 
nized by the Constitution was that of en- 
forcing the " fugitive slave clause ; " to wit, 
suitable leg^islation to enable the claimant to 
prove his title and obtain the delivery. But 
no part of said legislation in any manner 
could tend to establish slavery in any new 
spot. 

North Carolina understood that section 3 
of article IV. vested in Congress power to 
make regulations as to slavery in national 
territory. When in 1790 she ceded to the 
United States what is now Tennessee, she 
placed in her deed the words, "Provided 
that no regulation made or to be made by 
Congress shall tend to emancipate slaves." 
She used the precise word that is prominent 
in said section 3, and evidently had that 
section in mind. 

In 1802, when Georgia ceded what is now 
Alabama and Mississippi, she provided in 
her deed "that the ordinance of 1787 
should in all its parts extend to the territory 
ceded, that article only excepted which for- 
bids slavery." 

Thus within the first twelve years of the 



CONGRESS AND THE TERRITORY 55 

Constitution, Congress, without objection or 
controversy, did prohibit slavery from enter- 
ing upon 277,000 square miles of the na- 
tional territory, and two of the prominent 
slave states plainly evidenced their belief 
that such power belonged to Congress, and 
might be exercised as to Tennessee, Alabama, 
and Mississippi unless they should so word 
their deeds that the title to the land could 
only pass to the nation subject to the exist- 
ing: slave laws then in force in it. 

It has generally been supposed thalk the 
nation at that early period adopted as its 
policy a di^dsion of its territory between 
slavery and freedom. In fact, however, the 
nation prohibited slavery from every foot 
of ground then available for freedom. Be- 
fore their deeds of cession. North Carolina 
embraced Tennessee, and Georgia included 
Alabama and Mississippi. It is not material 
to notice the small strip claimed by South 
Carohna. They would not cede unless 
the slave law should continue unrepealed. 
Hence the nation did not admit slavery to 
any territory then or thereafter owned by 
it east of the Mississippi. Its policy was 
that of the Constitutional Convention, to 



66 WASHINGTON VERSUS JEFFERSON 

use what power it had to prevent the exten- 
sion of slavery. As soon as the year 1808 
arrived, Congress made criminal the foreign 
slave trade; and so far as legislation could 
deprive slavery of any increase from abroad, 
it gave ejffect to the convention's purpose. 
Meanwhile the treaty with France had added 
to the national domain about ljl^,000 
square miles. The only settlements were 
in what are now Louisiana, Arkansas, and 
Missouri. Slavery had been introduced by 
Spain and continued by France. Under 
the treaty the title of masters to slaves was 
protected, and any prohibition of slavery 
within the reasonable limits of those settle- 
ments would have been regarded as violating 
the spirit of the treaty. But we succeeded 
to the power of France over all outside of 
those limits. As France could, while she 
had dominion, determine when and under 
what rules new settlements might be estab- 
lished, so we could do the like as her suc- 
cessor in the title. Until March, 1820, Con- 
gress had made no attempt to exercise this 
power. In 1812 it admitted Louisiana, its 
slave laws having continued in force. The 
same laws continued in force in the territory 



CONGRESS AND THE TERRITORY 57 

organized as Missouri, and in that set apart 
on March 2, 1819, as Arkansas. In 1819 
Missouri asked to become a state. Party 
lines had disappeared. Monroe had no op- 
position when a candidate for reelection to 
the presidency. Every electoral vote but 
one was cast for him. A bill to authorize 
JMissouri to form a state constitution havino; 
been introduced in 1819, the House of 
Eepresentatives, by a vote of 97 to 5Q, so 
amended it as to prohibit slavery, except as 
a punishment for crime. The Senat% dis- 
agreed, and the matter went over to the next 
Congress. On March 6, 1820, the bill then 
pending was so amended as to provide 
"that in all territory ceded by France to the 
United States under the name of Louisiana, 
which lies north of thnty-six degrees, thirty 
minutes north latitude, excepting only such 
part as is included \\ithin the limits of the 
state contemplated by this Act, slavery and 
involuntary servitude, otherwise than for 
the punishment of crime whereof the party 
shall have been convicted, shall be and is 
forever prohibited." 

President Monroe was a Yiroinian. His 
cabinet consisted of John Q. Adams, of 



58 WASHINGTON VERSUS JEFFERSON 

Massachusetts, Secretary of State; William 
Wirt, of Virginia, Attorney-General; John 
C. Calhoun, of South Carolina, Secretary of 
War ; and George W. Crawford, of Geor- 
gia, Secretary of the Treasury. Mr. Adams 
in his memoirs states that President Monroe 
asked each of them to give in writing his 
opinion upon the power of Congress to 
prohibit slavery in the territory. In con- 
versation, all four agreed that it could, but 
Calhoun, Crawford, and Wirt held that the 
prohibition would be valid only during the 
territorial condition, while Adams claimed 
that it would bind the state also. Because 
of this difference, Calhoun suggested that 
the President should word the question, " Is 
the eighth section of the Missouri bill con- 
sistent with the Constitution?" The Presi- 
dent did so word it, and each 'of the four 
in writing answered " Yes." Thereupon, 
President Monroe approved the bill. 

Here again the impression has been com- 
mon that Congress acted upon a fixed policy 
to equally divide the national domain be- 
tween freedom and slavery. In fact, how- 
ever, the nation, in obedience to the spirit 
of the treaty of 1803, allowed the old slave 



CONGRESS AND THE TERRITORY 59 

law to continue in those portions of the 
ceded land which came to us with a popu- 
lation holding slaves under an old slave 
code, and with rights of settlement within 
those districts protected by said treaty. 
Said protected districts included about 
225,000 square miles, of which 118,000 
were in the States of Louisiana and Missouri. 
Outside of those states was about 107,000 
square miles south of 36° 30' that had been 
organized, on March 2, 1819, as the territory 
of Arkansas, with the old slave laws ilnre- 
pealed. By the Act of March 6, 1820, 
Congress closed to slavery about 919,000 
square miles, being, in fact, every square 
mile then plainly free from those rights in 
relation to slavery which had been placed by 
the treaty with France beyond our control. 
Congressman Kinsey, of New Jersey, at the 
time called attention to the fact that nine 
tenths of the territory had been preserved 
for free labor. 

Another erroneous impression has been 
very common, and has caused much conflict 
and evil ; to wit, that the Hne of 36° 30' was 
chosen as a suitable climatic Kmit for sla- 
very on the north, and therefore to be used 



60 WASHINGTON VERSUS JEFFERSON 

across the continent for that purpose. No 
hint of that kind was given in 1820. The 
north lines of Delaware and Maryland ran 
close to the parallel of 40° ; Kentucky ex- 
tended above 39°, while Virginia and Mis- 
souri crossed or approached 40° 30^ This 
line of prohibition began at the southwest 
corner of Missouri, and ran west across 
what are now Indian Territory and Okla- 
homa, keeping thirty miles south of Kansas, 
and ended at the 100th degree of west longi- 
tude, then the east line of Mexico, now the 
northeast corner of Texas. It so happened 
that a line drawn due west from the south- 
west corner of Missouri to the Mexican line 
would leave on its south side enough land 
to make good our treaty obligations to the 
inhabitants transferred to us by France. In 
simple, plain English, the celebrated " Mis- 
souri Compromise of 1820" devoted to 
freedom and free labor every foot of the 
immense country sold to us by France that 
our contract with France allowed us to so 
dispose of. If that statute established any 
principle it was " that it is the nation's duty 
to protect from the evils of slavery all na- 
tional territory not already incumbered by 
controlling title." 



CONGRESS AND THE TERRITORY 61 

In 1822 the ratification of the treaty that 
had been agreed upon in 1819 with Spain 
brought under our control Florida, subject 
to her then existing slave laws and rights. 

On March 1, 1845, a joint resolution for 
the annexation of Texas was passed by Con- 
gress, embodying terms agreed upon by and 
between John C. Calhoun, of South Caro- 
lina, Secretary of State, and the Minister of 
the Republic of Texas. In this, for the 
first time, appeared the idea of a permanent 
sort of isothermal line to mark the norl^ern 
limit of slavery. A stipulation introduced 
by Mr. Calhoun gave consent to a future 
division of Texas into not exceeding four 
states, slavery to be excluded north of 36° 
30' north latitude. 

Here the United States gave no consent 
to the extension of slavery into territory 
from which it was theretofore excluded. If 
Texas owned the land, her slave law was in 
force therein. We accepted her as one of 
our states with that law. 

The treaty with Mexico in February, 
1848, added about 650,000 square miles to 
our country. Congress discussed the slavery 
question in connection with this new land 



62 WASHINGTON VERSUS JEFFERSON 

until September 9, 1850. The South 
claimed that the line of 1820 had been 
selected as a dividing line between North 
and South, and insisted that it should be 
extended to the Pacific, and made the 
southern line of the new State of California. 
President Zachary Taylor, born a Virginian, 
resident in Louisiana, himself an owner of 
many slaves, used his influence through 
Mr. T. Butler King, of Georgia, to induce 
the people on the newly ceded Pacific coast 
to include the whole of what is now our 
California in one state. The North replied 
to the South that the line of 36° 30' had 
been intended only, for the purpose I have 
hereinbefore stated : that when legislating 
for the territories. Congress was merely act- 
ing as the legislature of the nation as a 
whole, looking to the best interests of the 
people as a whole; and that as the social 
and political evils incident to slavery had 
caused the civilization of our age to con- 
demn and abolish it, no conscientious legis- 
lator could justify himself in voting to bring 
those evils upon many millions who would 
never own slaves, in order to further the 
special interest of a very small number of 
our population who were slaveholders. 



CONGRESS AND THE TERRITORY 63 

This Northern view was forcibly and 
temperately stated by Allen G. Thurman, a 
native of Lynchburg, Virginia, who, on the 
15th of January, 18J:7, was a representative 
of the Chillicothe district (Ohio) in Congress, 
and voted in favor of applying the Wilmot 
Proviso to all territory that we might gain 
from Mexico, and so prohibit the introduc- 
tion of slavery therein. He said : — 

" Why, then, does the North insist upon 
opposing the extension of slave territory? 
I answer : Because, first, as the mun^pipal 
legislature of the territories, it is the duty 
of Congress to promote their interests. The 
people of the free states think, whether 
erroneously or not, that it is for the interest 
of any country that slavery be prohibited; 
and thinking so, we, as the legislative power 
over the territories, deem it our duty, when 
it can be done without too great a sacrifice, 
to exclude slavery from them. 

" Another reason : That Cono^ress is the 
national legislature, and therefore must look 
to the national interest; and as the strength 
and prosperity of the nation is composed of 
the strength and prosperity of its parts, it 
is the duty of Congress, no insuperable ob- 



64 WASHINGTON VERSUS JEFFERSON 

stacle standing in the way, to pursue such a 
course of policy as shall strengthen in the 
greatest degree the United States ; and be- 
lieving that free territory would be more 
populous, wealthy, abundant in resources, 
and in everything that makes great a nation, 
it is for the national interest to have as 
much free territory as possible, compatible 
with the existence of the Union. 

" The third reason is, that in the opinion 
of the North it is inconsistent with the 
genius of our institutions and injurious to 
the character of the United States to extend 
slavery. Where it exists, let it exist, says 
the North, but do not extend it by the 
action of the general government, and con- 
vert what is now free into slave territory." 

Allen G. Thurman was elected a Supreme 
Judge of Ohio, as a Democrat, in 1851; 
was a Democratic United States Senator 
from Ohio from March 4, 1869, to March 4, 
1881 ; and was the Democratic candidate 
for Vice-President of the United States in 
1888, receiving the electoral votes of Dela- 
ware, Maryland, Virginia, North Carolina, 
South CaroHna, Georgia, Florida, Alabama, 
Mississippi, Louisiana, Texas, Arkansas, 



CONGRESS AND THE TERRITORY Qb 

Tennessee, Kentucky, and Missouri, as well 
as of several Northern states. As man, as 
lawyer, as judge, as statesman, few men of 
any party or of any state are held in more 
loving memory or in higher repute. He 
clearly, strongly, and fairly stated the 
Northern position. The North could not 
vote to extend slavery into free territory, 
because to do so would be wrong. All land 
ceded by Mexico would be free territory, 
because she had abolished slavery. 

By 1850 the Southland had becom^ ex- 
cited ; its people had been taught to believe 
that a refusal to allow slavery to exist in 
the newly acquired regions would be a gross 
wrong to them. The country was in fact 
in peril. If Congress had then applied the 
Wilmot proviso to the Mexican cession, it is 
very probable that successful secession would 
have followed. Neither the people nor 
President Fillmore was then prepared to 
meet and defeat such an attempt. Daniel 
Webster saw and understood the danger. 
He also saw what seemed to him sound rea- 
son for believing that it would be imprac- 
ticable to establish slavery in either New 
Mexico or Utah ; and that a mere omission 



66 WASHINGTON VERSUS JEFFERSON 

to then enact a prohibition of slavery would 
not result in any extension of that institu- 
tion. He therefore deemed it wise to allay 
the excitement that threatened to dissolve 
our Union, by securing the passage of the 
Henry Clay compromise. I will quote 
briefly from Webster's " Seventh of March 
Speech/' March, 1850. 

"Now as to Utah and New Mexico, I 
hold slavery to be excluded from those terri- 
tories by a law even superior to that which 
admits and sanctions it in Texas. I mean 
the law of nature, of physical geography ; 
the law of the formation of the earth. 
What I mean to say is that it is impossible 
that African slavery, as we see it among us, 
should find its way or be introduced into 
Utah and New Mexico, as any other natural 
impossibility. What is there in New Mex- 
ico that could by any possibility induce 
anybody to go there with slaves? There 
are some narrow strips of tillable land on 
the borders of the rivers, but the rivers 
themselves dry up before midsummer is 
gone. All that the people can do is to raise 
some little articles, some little wheat for 
their tortillas, and that by irrigation. I 



CONGRESS AND THE TERRITORY 67 

look upon it, therefore, as a fixed fact (to use 
the current expression of the day), that both 
Utah and New Mexico are destined to be 
free." 

Webster's aid to Clay gave success to that 
compromise. On September 9, 1850, Utah 
and New Mexico were each made a territory, 
with a right to decide, when seeking en- 
trance as a state, whether the new state 
should allow slavery or not. After ten 
years, the census of 1860 showed that in 
New Mexico there were, in June of tthat 
year, no slaves, and in Utah only twenty^ 
nine slaves. All efforts to estabHsh slavery 
in either territory had failed. Webster's 
judgment had been correct. In 1832-33 
his powerful argument, sound logic, and 
unequalled eloquence had maintained, dur^ 
ing the nullification crisis, the true theory 
of our Constitution. In 1850 he greatly 
helped to secure for his country time to pre- 
pare for the shock of a secession war. The 
calm judgment of generations to come will 
perhaps yet render him his due. 

At that time the country felt the serious 
nature of the danger it had escaped. In 
1852 the Whig and Democratic national 



68 WASHINGTON VERSUS JEFFERSON 

conventions each placed in its platform a 
pledge to "resist every attempt to reopen 
the slavery question, no matter from what 
quarter it might come." Franklin Pierce, 
a New Hampshire Democrat, known to the 
South as a disciple of Calhoun, received the 
electoral votes of all the states except Mas- 
sachusetts, Vermont, Kentucky, and Ten- 
nessee, while his party filled more than two 
thirds of the seats in the national Senate, 
and commanded a majority of about sev- 
enty-five in the House. 

I was a Clay and Webster Whig, had be- 
lieved in the danger, and was glad of the 
escape of 1850. One morning in January, 
1854, while my partner was writing at his 
desk, I began to read the morning paper 
before our fire. I suddenly called out, 
" John ! we are going to have slavery agi- 
tation worse than ever before ! " To his 
"Why?" I replied by reading from the 
congressional telegraphic bulletin Senator 
Douglas's proposal to make the Nebraska 
bill annul the Missouri Compromise, and 
said, " If his proposal shall be made law, 
there can be no room for any further com- 
promise ; slavery extension must be pre- 
vented." 



CONGRESS AND THE TERRITORY 69 

Similar remarks were made by other men 
who with me had favored the compromise 
of 1850. 

A very mistaken impression has existed, 
esj)ecially at the South, as to the influence 
of abohtionism. In 1840 the entire vote 
of that party gave only 7059 for Mr. James 
G. Birney. In 1844 he received 62,300. 
In 1848 the " Barnburners " of New York, 
seeking to punish Cass for his defeat of 
Van Buren in the Democratic party, joined 
forces with former Birney men, and 291,^63 
votes were cast for Van Buren. In 1852 
John P. Hale received only 156,149. But 
the repeal of the Missouri Compromise 
shocked the convictions of great masses of 
men who had never thought of aiding abo- 
lition. They had no wish to interfere in 
any state in which they did not reside. But 
they considered national territory subject 
to national legislation, and held themselves 
responsible for the nature of this legisla- 
tion ; held that to legalize slavery in free 
territory would be lorong. In 1852 Ohio 
had sent a majority of Democrats to the 
national House of Representatives, and in 
1853 had elected a Democratic governor by 



70 WASHINGTON VERSUS JEFFERSON 

over 61,000 pluraHty. On May 30, 1854, 
the Kansas-Nebraska bill repealed the Mis- 
souri Compromise of 1820. On the second 
Tuesday of October thereafter, Ohio de- 
feated every Democratic candidate for Con- 
gress by heavy majorities and elected the 
Republican state ticket by over 77,000 plu- 
rality. Only seven of her eighty-eight coun- 
ties gave a Democratic plurality. In 1856 
John C. Fremont, Republican candidate for 
president, upon a platform pledged to pre- 
vent slavery extension, received 1,341,264 
votes ; in 1860 Abraham Lincoln's popular 
vote was 1,866,352. This was no growth 
of abolitionism; it was the voice of that 
opinion as to the evils of slavery, and to the 
national duty of preventing its extension, 
which was so prominent in the Constitutional 
Convention, in the early presidents, and in 
the great body of our people ; the identical 
opinion voiced by George Mason, of Vir- 
ginia, in the convention, previously quoted 
by me, when he said, " I hold it essential in 
every point of ^dew that the general govern- 
ment shall have power to prevent the in- 
crease of slavery." 

Webster's argument that slavery could 



CONGRESS AND THE TERRITORY 71 

not possibly be established in our Mexican 
cession gained enough votes to carry the 
compromise of 1850 as an adjustment of 
that territory. Those votes would not have 
been given to open in like manner the old 
Louisiana purchase. At the time they were 
given no one claimed that a principle was 
being established that would repeal the pro- 
hibition of 1820. But in 1853 David R. 
Atchison, one of Missouri's senators, began 
a movement to carry slavery west of that 
state. When the Senate met in Deceraber, 
1853, he had secured the cooperation of a 
majority of the Democratic caucus, and noti- 
fied Senator Douglas that his continuance 
as chairman of the Committee on Territories 
would depend upon his consent to open all 
of the Louisiana purchase to slavery. The 
astute Douglas planned to please the South 
and yet retain the North. He reported 
finally a bill to organize two territories : 
Kansas, bounded by the parallels 37° and 
40° north latitude, separated by over thirty 
miles of slave Missouri from free Iowa, and 
Nebraska, bounded by 40° and 49° ; and 
extended over them all the laws of the 
LTnited States " except the eighth section 



72 WASHINGTON VERSUS JEFFERSON 

of the Act preparatory to the admission of 
Missouri into the Union, approved March 6, 
1820, which, being inconsistent with the 
principle of non-intervention by Congress 
with slavery in the states and territories as 
recognized by the legislation of 1850, com- 
monly called the compromise measures, is 
hereby declared inoperative and void : it 
being the true intent and meaning of this 
Act not to legislate slavery into any terri- 
tory or state, nor to exclude it therefrom, 
but to leave the people thereof perfectly 
free to form and regulate their domestic in- 
stitutions in their own way, subject only to 
the Constitution of the United States : Pro- 
vided that nothing herein contained shall be 
construed to revive or put in force any law 
or regulation which may have existed prior 
to the Act of the sixth of March, 1820, 
either protecting, establishing, prohibiting, 
or aboHshing slavery." 

In 1854 Thomas H. Benton, who had 
represented Missouri in the Senate from 
1821 to 1851, who was active in the Sen- 
ate during the debates of 1850, and had 
full knowledge of them, represented St. 
Louis in the House, and earnestly opposed 



CONGRESS AND THE TERRITORY 73 

the repeal of the compromise of 1820. He 
denied that in 1850 any member of the 
Senate supposed that the legislation of that 
year could or would in any manner affect 
the Act of 1820. The repeal would have 
failed to pass in 1854 had not a number of 
members from the North believed that times 
and circumstances had so changed that free 
immigration would pour into the new terri- 
tories three or four times as rapidly as slave 
immigration, and therefore make impossi- 
ble the establishment of slavery in either. 
Amono; those who so believed and so voted 
for the repeal was James H. Lane, of In- 
diana. His term expired with the 3d of 
March, 1855, and he at once emigrated to 
Kansas, and was very active in making it 
a free state. 

Senator Atchison had surmised the dan- 
ger from a more numerous free immigration, 
and for that reason had induced Douglas 
to so change the bill as to make two territo- 
ries. He thought that the free immigration 
would avoid passing through slave Missouri, 
and so pass through free Iowa into wide 
Nebraska ; while narrow Kansas, narrow as 
compared with the Nebraska of 1854, could 



74 WASHINGTON VERSUS JEFFERSON 

be possessed and shaped by Missouri and 
other slave state emigrants and influences. 
It so happened that a Southern gentleman, 
known to me for some ten years, had settled 
in a western border county of Missouri. 
After Kansas had on the 2d of August, 
1858, voted by almost 10,000 majority not 
to come in as a slave state under the Eng- 
lish bill and the Lecompton Constitution, 
this gentleman revisited Ohio, and, meeting 
me as an old friend, related to me the 
following facts : He said that prior to 
the election of a territorial legislature in 
Kansas, companies had been formed in the 
border Missouri counties, under regular or- 
ganizations and rules, for the purpose of 
forestalling free-state emigrants in taking 
control of Kansas. He became a member 
of one of these companies. Under notices 
and orders, these Missouri companies were 
marched to allotted voting precincts in Kan- 
sas, and there hunted and fished a specified 
number of days; then paid one dollar per 
head to an of&cer at each polling-place, and 
voted at the election. He told me that 
they felt some fear that at the next succeed- 
ing election in Missouri their votes might 



CONGRESS AND THE TERRITORY 75 

be challenged because of having so voted 
in Kansas within the year, but that on ap- 
proaching the Missouri poll, his apprehen- 
sion was quieted by the fact that he saw 
sitting as a judge at the Missouri election a 
man who had voted by his side in Kansas. 
This mode of carrying elections in Kansas 
by voters from Missouri was continued until 
broken up by Governor Robert J. Walker. 

The territorial legislature thus chosen in 
the spring of 1855, as is well known, made 
the slave code of Missouri the law ctf the 
territory of Kansas. It continued in force 
until after Governor Walker and Secretary 
F. P. Stanton, both Southern Democrats, 
had certified to the election of free-state 
majorities in both houses of the territorial 
legislature in November, 1857, and until 
that legislature could meet and repeal said 
code. From 1854 to 1861, Presidents 
Pierce and Buchanan, warm partisans of 
the South, and like - minded officials as 
judges and other territorial officers, sus- 
tained the pro - slavery party in Kansas, 
while several regiments of the regular army, 
and at times large bodies of Missouri mili- 
tia, were used effectively in support of the 



76 WASHINGTON VERSUS JEFFERSON 

pro-slavery territorial legislature. Earnest 
appeals were made throughout the South to 
induce pro-slavery emigrants to come in aid 
of the efforts that were used for four years 
to make Kansas a slave state. 

Thus the power of the national govern- 
ment, backed by an armed force, equipped 
with judges, marshals, and deputy marshals, 
having near at hand one of the most popu- 
lous of the slave states intensely interested 
in the struggle, and bidden Godspeed by all 
the Southland, — millions of intelligent men 
and women, — was exerted for four years 
against " free-state emigration " backed by 
free - state encouragement. The struggle 
had been invited by the terms of the Kan- 
sas-Nebraska bill. The South had from 
the start a full slave code recognized by 
national and territorial authorities as in 
full legal force. Free-state emigrants who 
attempted to pass through Missouri were 
obstructed, impeded, sometimes turned back. 
The main body for a time were compelled 
to enter Kansas via Iowa and Nebraska. 
The Missouri prohibitory line was repealed 
on May 30, 1854. On August 2, 1858, 
the territory voted on the free-state side, 



CONGRESS AND THE TERRITORY 11 

11,300 ; pro-slavery, 1788 ; and the North 
had won the victory. 

The excitement of the contest made both 
sides bhnd to the plain teaching of the un- 
questioned, the indisputable facts. These 
facts were : Congress, the nation, had re- 
pealed the prohibition and left for slavery 
an open road to Kansas ; had permitted it 
to make its existence there legal, had made 
it possible for the South to bring it into the 
Union as a slave state, provided it could in- 
duce a majority of the legal voters in the 
territory to adopt a slave constitution at a 
fair vote and count. Kobert J. Walker and 
F. P. Stanton, Southern men of high repute, 
asserted, supported by unquestionable evi- 
dence, that the pro-slavery elections in 1857 
at Oxford and in McGee County reported 
poll books copied from pages of the " Cin- 
cinnati Directory," and 1600 votes in the 
one from less than sixteen houses, and over 
1200 votes in the other, where were no in- 
habitants and where no election at all had 
been held. No man questioned the elec- 
tion of August 2, 1858, and its majority of 
9512 against the South. 

If under such favoring CKCumstances, in 



78 WASHINGTON VERSUS JEFFERSON 

that part of the national domain nearest to 
and most accessible from the South, with 
the national officials warmly in sympathy 
with the South, the failure was so signal, 
where and when could success be found? 
From May 30, 1854, to June, 1860, both 
Kansas and Nebraska were legally as open 
to slavery as South Carolina. The census 
taken in June, 1860, tells us that there were 
then only fifteen slaves in Nebraska, and 
only two in Kansas. From September 9, 
1850, to June, 1860, Utah and New Mexico, 
embracing also what are now the western 
half of Colorado and all of Nevada and 
Arizona, were open to the South, with no 
congressional prohibition of slavery, and 
with the right specified in their acts of or- 
ganization to come in as states with or 
without slavery, as their people respectively 
should decide. I believe pro-slavery sym- 
pathizers had also induced a territorial legis- 
lature in New Mexico to pass a slave code to 
encourage Southern immigration. Yet in 
almost ten years only twenty-nine slaves had 
become settled in Utah, and none in New 
Mexico. Althouo^h men of the South dif- 
fered in opinion on many questions from 



CONGRESS AND THE TERRITORY 79 

men of the North, all men hieio that no 
slave state could be formed unless a major- 
ity of its legal voters should so wish. In 
the generations that had passed since the 
settlement of Missouri and Arkansas, im- 
mense chancres had occurred. The white 
population of North and South stood to 
each other in 1860 as about 19,000,000 to 
8,000,000, while in 1820 they were about 
as 3,700,000 to 2,900,000. In 1820 there 
were no railways and few steamboats. In 
1860 the North was weU suppHed witl^ both 
modes of transit. The unwillmgness of*free 
laborinof men to make homes in slave states 
was well known. These sio;nificant census 
facts, added to the vote of Kansas on Au- 
gust 2, 1858, made it as plain as daylight 
that it had become impracticable to so popu- 
late any part of our national territory as to 
secure the votes requisite to adopt a slave 
constitution. 

By Febi;uary, 1861, this had become so 
evident to Northern men that when Senator 
James S. Green, of Missouri, then chairman 
of the Senate Committee on Territories, re- 
ported bills to organize the territories of 
Colorado, Dakota, and Nevada without any 



80 WASHINGTON VERSUS JEFFERSON 

prohibition o£ slavery, no Republican moved 
for a prohibitory amendment, and senators 
of all parties united in passing the laws as 
worded by a Southern Breckinridge Demo- 
crat. Like votes were given in the House 
of Representatives, President Buchanan ap- 
proved them, and before the inauguration 
of President Lincoln every foot of national 
land had been placed in organized territo- 
ries without a statutory word prohibiting 
any slaveholder from making therein a 
home for himself and his slaves. The 
Nor^h had become convinced that such a 
statutory prohibition was no longer neces- 
sary ; that a new slave state made out of 
said land had become an impossibility. 



IV 



HOW CIVIL WAR MIGHT HAVE BEEN PRE- 
VENTED 

If the twelve judges of England had 
given judgment that John Hampden was 
not bound to pay " ship money " upon a 
king's assessment not authorized by an^Act 
of Parliament, Charles I. might have died 
quietly in his bed after a successful reign. 
If Chief Justice Taney and Justices Wayne, 
Daniel, Grier, and Campbell had been con- 
tent to allow Justice Nelson to state why 
they held that the court had no jurisdiction 
of the Dred Scott case, and to announce its 
dismissal (as they had at^first directed him 
to do), Jefferson Davis might have died a 
United States senator from Mississippi, af- 
ter more years of service in that body than 
Benton of Missouri, Sherman of Ohio, or 
Morrill of Vermont could count. I think 
that no judicial opinion ever announced by 
man brought sickness, misery, and death in 



82 WASHINGTON VERSUS JEFFERSON 

varied forms to so many human families as 
did the " obiter dicta " of those five judges, 
every one of them " an honorable man." 
Their utterances influenced Senator Jeffer- 
son Davis. My study of his history has 
caused me to think him a Christian gentle- 
man ; a man of honor and integrity ; of 
very considerable ability as a debater and 
orator ; and firm in his adherence to what 
he believed to be right. But it seems to 
me that he was specially lacking in practi- 
cal common sense. He was devoted to the 
interests of the Southland and the Southern 
people ; he would willingly have died in 
their cause. Yet I believe facts are such 
that it will appear to calm judgment that 
the error into which he was led by the Dred 
Scott case caused the Civil War and the 
destruction of slavery. 

It had been axiomatic among judges and 
lawyers that unless a court had jurisdiction 
of a case it could not legally pronounce any 
judgment therein except to announce the 
lack of jurisdiction and order the case from 
the docket. If all of the nine judges belong- 
ing to different states and parties had been 
of the same opinion upon the power of Con- 



HOW CIVIL WAR WAS PREVENTABLE 83 

gress to prohibit slavery (as the x\ct of 
March 6, 1820, had provided), they might 
ha.ve supposed that the announcement of 
such unanimity would allay agitation upon 
that question, and therefore justify a de- 
parture from strict law and custom. But 
while Justice Nelson held that Dred Scott, 
by returning to Missouri, had reestablished 
his legal condition as a slave, and that the 
Act of March 6, 1820, therefore did not 
apply to him, and Justice Catron held that 
said Act of March 6, 1820, was not ^alid 
because of the terms of the treaty of 1803 
with France, neither of them beHeved in 
the constitutional theory announced in that 
case by Chief Justice Taney. Justices 
McLean and Curtis openly announced their 
dissent from that theory ; Justices Nelson 
and Catron made it evident to inteUigent 
lawyers that they did not concur in that 
theory. 

So the court stood five for the doctrine 
of Calhoun, and four against it. If Judge 
Catron had recalled the fact that while 
France owned Louisiana none of its inhabit- 
ants could gain any right to colonize any 
of the land not by government order thrown 



84 WASHINGTON VERSUS JEFFERSON 

open to settlement until the government 
should direct time^ place, and terms, and 
that the United States had succeeded to the 
governmental power of deciding when, where, 
and under what regulations new settlements 
might be made, I believe he would have 
united with McLean and Curtis in uphold- 
ing the validity of the Act of 1820. I also 
believe that if Justice Nelson had then an- 
nounced his opinion on that question, he 
would have held it constitutional, and so 
made the court stand five to four. That 
the five judges, under the circumstances, per- 
sisted in making public their " obiter dicta " 
might well have caused careful, thinking 
lawyers to doubt the accuracy of their legal 
opinions upon the question. 

If they could be so indiscreet as to vio- 
late custom, merely to tell the world that a 
majority of one would so adjudge if a pro- 
per case should he submitted to the court, 
a careful thinker might well doubt. Before 
telling how their " obiter dicta " influenced 
Mr. Davis, let me state a few facts thus far 
omitted from my history of the national 
use of said power to prohibit. ^ 

In August, 1789, the act adapting the 



HOW CIVIL WAR WAS PREVENTABLE 85 

" ordinance of 1787 " to the neV Constitu- 
tion^ and so continuing its prohibition of 
slavery north of the Ohio, was approved 
by Washington. On May 7, 1800, John 
Adams approved the Indiana Territorial 
Act. On January 11, 1805, Jefferson ap- 
proved the Michigan Territorial Act. On 
February 3, 1809, he approved that for Illi- 
nois. On March 6, 1820, Monroe approved 
the famous Missouri Compromise Act. On 
April 30, 1836, Jackson approved the Wis- 
consin Act. On June 12, 1838, Van ^^uren 
approved the Iowa Act. On March 4, 
1845, Tyler approved the Texas Joint Re- 
solution. On August 14, 1848, Polk ap- 
proved the Oregon Act, and on March 3, 
1849, the one for jMinnesota. 

Beginning with the expression of a pur- 
pose, in 1787, to frame a national supreme 
government, with a judiciary authorized to 
decide questions that might arise between 
its members, or between any member and 
the nation, followed by the completion, 
ratification, and establishment of that gov- 
ernment and that court, by the continuous 
exercise from August, 1789, down to March 
3, 1849, by Congress, of the power to legis- 



86 WASHINGTON VERSUS JEFFERSON 

late for national territories and to prohibit 
slavery therein, the continuous approval of 
said acts by every president to whom one 
was presented (including six Southern-born 
men and slaveholders), with at least three 
unanimous decisions made by the Supreme 
Court in 1816, 1819, and 1824 (during that 
period in our national history in which 
party spirit was less violent than any other), 
upholding Washington's construction of the 
Constitution, and deciding in most positive 
terms against the theory secretly set forth 
by Jefferson, we have a body of authority 
that must satisfy a considerate, well-in- 
formed mind that the Convention of 1787 
did not construct the chaotic nonentity de- 
scribed by the Kentucky resolution of 1798, 
on which the five " obiter dicta " were 
based. 

Unhappily Jefferson Davis had grown up 
as a disciple of John C. Calhoun, had ac- 
cepted his premises as facts, and adopted 
his conclusions. 

To him the " obiter dicta " of Taney, 
C. J., and his four associates came as '" ex- 
ceeding glad tidings ; " seeming, as they 
did, to clothe with judicial form the political 



HOW CIVIL WAR WAS PREVENTABLE 87 

articles of faith taught by the great South 
CaroHnian. Had Mr. Davis's mind been 
filled with practical common sense, he would 
have asked himself : " What practical effect 
can this doctrine now have in the direction 
of actually establishing slavery in any of 
our territories? 

" Could it do more than to induce Con- 
gress to pass a law making it legal for any 
emigrant to take with him, from any exist- 
ing state, his slave, and maintaining his right 
to hold him until the territory should iftake 
its constitution and gain admission to state- 
hood ? " Even Mr. Davis would not have 
claimed more. His consideration of the 
question convinced him that, under the rul- 
ing of the five judges in the Dred Scott 
case, it was the duty of Congress to pass 
such a law. 

Not being a man of practical common 
sense, he did not ask himself the next ques- 
tion : — 

^' What can such a law accomplish in the 
way of creating a new slave state ? " 

In the spring of 1855, a complete slave 
code, the result of Missouri's forty years' 
experience with slavery, — having free terri- 



88 WASHINGTON VERSUS JEFFERSON 

tory on its north, east, and west, and having 
been thereby taught how best to protect her 
slave property, — had been enacted by the 
territorial legislature for Kansas. The valid- 
ity of this code had been recognized by the 
national and territorial authorities. Two 
successive administrations, full of sympathy 
with the South, had rendered all practicable 
aid in the effort to secure Kansas for slav- 
ery, and to turn free-state emigration to 
Nebraska. As already stated, by August, 
1858, the voters of Kansas were almost ten 
to one against slavery ; and by June, 1860, 
there were only two slaves in the territory. 
Between September 9, 1850, and June, 1860, 
there had been no effort to prevent the tak- 
ing of slaves to New Mexico and Utah. A 
territorial legislature had invited it to New 
Mexico. As already stated, during the ten 
years only twenty-nine slaves had gone to 
Utah, and not one to New Mexico. 

These stubborn but indisputable facts 
would seem to demonstrate that the enact- 
ment of a congressional territorial slave 
code could not possibly do any good to the 
South. Few slaveholders would care to 
settle with slaves in a community that with- 



HOW CIVIL WAR ^VAS PREVENTABLE 89 

in a few years would forbid slavery in the 
state. 

Common sense would also have told him 
that it would be idle to urge upon Congress 
the enactment of any such code. The 
practice of the government for seventy 
years had been to use its power, if at all, 
to prevent the extension of slavery into free 
territory. It had tested to the uttermost 
Southern argument, eloquence, and threats 
to induce ConoTess to refrain from active 

c5 

prohibition of slavery. ^ 

Moreover a united South, aided by a 
Northern minority, on the 30th day of May, 
1854, had put into the form of law the 
following words : — 

" Which being inconsistent with the prin- 
ciple of non-intervention by Congress in 
the states and territories, as recognized by 
the legislation of 1850, commonly called 
the compromise measures, is hereby declared 
inoperative and void ; it being the true in- 
tent and meaning of this Act not to legis- 
late slavery into any territory or state, nor 
to exclude it therefrom, but to leave the 
people thereof perfectly free to form and 
regulate their domestic institutions in their 



90 WASHINGTON VERSUS JEFFERSON 

own way, subject only to the Constitution 
of the United States : Provided that no- 
thing herein contained shall be construed 
to revive or put in force any law or regu- 
lation which may have existed prior to the 
Act of the sixth of March, 1820; either 
protecting, establishing, prohibiting, or abol- 
ishing slavery." 

Thus according to the South, speaking 
by the almost unanimous voice of its sena- 
tors and representatives in 1854, the prin- 
ciple of the compromise measures of 1850 
was ^' non-intervention by Congress : " to 
leave the whole matter to the people of the 
states and territories. 

Two years later, in 1856, the South, in the 
Democratic National Convention at Cincin- 
nati, placed James Buchanan upon a plat- 
form expressly indorsing and adopting said 
extract from the Kansas-Nebraska bill as 
the true party and Southern doctrine. The 
people made him president. 

Thus to a policy and practice that for 
seventy years had furnished no instance of 
congressional legislation establishing or sup- 
porting slavery (during fifty years of which 
the presidents had been Southern men and 



HOW CIVIL WAR WAS PREVENTABLE 91 

slaveholders), was added a law voted for 
with unanimity by the South in both houses 
of Congress, and a party platform fully 
approved by the South and ratified by the 
people, that Congress should not legislate 
on slavery in a territory. 

This would seem sufficient to justify con- 
gressmen who believed slavery to be unwise 
or wrong, in refusing to vote for a congres- 
sional slave code for free territories. 

Common sense, if consulted by Jefferson 
Davis, would have said to him, " Yoij can- 
not possibly do a more useless, more unwise, 
or more dangerous act than to ask for a 
congressional slave code : if enacted, it could 
not possibly do any good for you, or for 
the South ; the attempt to secure it will 
divide the Democratic party and endanger 
the Union ; and the attempt cannot possibly 
secure a code." 

Being a theorist instead of a practical 
man of affairs, Senator Davis, on the second 
day of February, 1860, introduced in the 
Senate a series of resolutions, two of which 
I here quote. 

His fourth read, " That neither Congress 
nor a territorial legislature, whether by 



92 WASHINGTON VERSUS JEFFERSON 

direct legislation or legislation of an in- 
direct and unfriendly character, possesses 
power to annul or impair the constitutional 
right of any citizen of the United States to 
take his slave property into the common ter- 
ritories, and there hold and enjoy the same 
while the territorial condition remains." 

His fifth read, " That if experience 
should at any time prove that the judiciary 
and executive authority do not possess 
means to insure adequate protection to con- 
stitutional rights in a territory, and if the 
territorial government shall fail or refuse to 
provide the necessary remedies for that pur- 
pose, it will be the duty of Congress to sup- 
ply that deficiency." 

The most notable objection to these reso- 
lutions arises from the fact that no citizen 
of the United States ever had any constitu- 
tional right to take a slave into any terri- 
tory of the United States. 

The Constitution makes no reference to 
any person who can be considered as a slave 
except in the following three instances : — 

1. The third clause of section 2, article I., 
directs that when apportioning representa- 
tives and direct taxes among the states, to 



HOW CIVIL WAR WAS PREVENTABLE 93 

the whole number of free persons, inchid- 
ing those bound to service for a term of 
years, and exckiding Indians not taxed, must 
be added "three fifths of all other persons." 

2. Section 9 of article I. authorized 
Congress to forbid entrance into any state 
•^ of such persons as any of the states now 
existing shall think proper to admit " at 
any time after December 31, 1807. No 
matter how anxious any state might be to 
maintain or increase the number of slaves 
within its limits after that date, it ^ould 
not introduce a single one from outside 
the United States without the consent of 
Congress. This was a plain constitutional 
implication that such an increase in the 
number of slaves ought to be prevented for 
the national good. 

Under neither of these clauses could any 
one claim a right to take a slave into any 
territory. Neither of them confers or re- 
cognizes any right on or in any master. 
They merely recognize the fact that in some 
states there are such persons, and that some 
states " think proper to admit such persons " 
from abroad. 

No. 3 reads, " No person held to service 



94 WASHINGTON VERSUS JEFFERSON 

or labor in one state under the laws thereof, 
escaping into another, shall in consequence 
of any law or regulation therein be dis- 
charged from such service or labor, but 
shall be delivered up on claim of the party 
to whom such service or labor may be due." 

This is a plain recognition of the fact 
that under the laws of South CaroHna 
"John" may be held to service or labor 
in that state; that under said state laws 
service or labor to he rendered hy " John " 
in South Carolina may be due to a master 
therein. It is also, by implication, recogni- 
tion of the fact that that law of South Caro- 
lina has no force outside of the limits of 
that state ; and that if " John " escaped 
from South Carolina, " John " would be free, 
unless either the laws of the state into 
which he escaped should permit his master 
to reclaim him, or unless the national Con- 
stitution should provide, as it did, for 
" John's " delivery up on claim. 

It is no recognition of the master's right 
to take " John " outside of South Carolina 
and hold him to service. It plainly implies 
that the master, if he shall take " John " 
beyond the South Carolina line, must do 



HOW CIVIL WAR WAS PREVENTABLE 95 

SO at his own risk. The master did not 
own " John " as a farmer owns his horse 
or ox or hog. No " fugitive " clause was 
deemed necessary as to such "property." 
The farmer owns their limbs, their bodies — 
the whole of them ; could kill or sell or 
ship at pleasure. But the master had a 
debt due to him from his so-called slave, 
payable in labor to he performed within the 
state of South Carolina, or within any 
other state that would so leoislate. An 
emigrant farmer could carry with hin% his 
cattle from South Carolina to any other 
locaHty, but he could not carry with him 
any South Carolina statute. His right in his 
slave was limited to the privileges granted 
by the South Carolina statute, and for that 
reason he could not emioTate with his slave 
as he might do with his cattle. 

When the Supreme Court of the United 
States, in Prigg v, Pennsylvania, 16 How- 
ard, 540, unanimously held " The state of 
slavery is deemed to be a mere municipal 
regulation ; founded upon and limited to 
the range of the territorial laws," it stated 
an old, well-established, and generally recog- 
nized doctrine. 



96 WASHINGTON VERSUS JEFFERSON 

The Constitution imposed no duty upon 
the nation in aid of the master save the one 
described by the " fugitive slave clause ; " 
to wit, to furnish by appropriate legislation 
the means for making proof of claim and se- 
curing a delivery of one who had '^escaped" 
from the state " in which " he was bound to 
labor, to another. Congress, by the Acts 
of 1793 and 1850, had fulfiUed this duty. 

As we have seen, the practice of the Ex- 
ecutive, of Congress, and of the judiciary, 
from 1789 to 1857, had conformed to the 
doctrine that no citizen of the United States 
had any constitutional right (no right under 
the national Constitution) to take his slave 
into any territory. 

We have also seen that a majority of both 
houses of Congress, including almost all the 
senators and representatives from the South, 
proclaimed to the world in the form of a 
law that by the legislation of 1850 a prin- 
ciple had been established ; to wit, non- 
iiitervention by Congress in the states and 
territories ; and that in order to give effect 
to that principle, they, by the Act of May 
30, 1854, meant " not to legislate slavery 
into any territory or state, nor to exclude it 



HOW CIVIL WAR WAS PREVENTABLE 97 

therefrom, but to leave the people thereof 
perfectly free to form and regulate their 
domestic institutions in their own way, sub- 
ject only to the Constitution of the United 
States." 

As the only duty imposed by that Consti- 
tution in favor of slavery related to such 
escaped slaves as we have described, and the 
Act of Congress of 1850 fully provided 
appropriate legislation as to them, there re- 
mained nothino; due from Cono;ress accord- 
ing to the principle and law thus de Jared 
and enacted by the South itself. 

Mr. Davis's resolution made an entirely 
new claim ; made it for the first time after 
the Constitution and government had been 
in operation for seventy years upon an op- 
posite practice ; and made it at a time when 
it was apparent to every one that the new 
doctrine could not be applied to any prac- 
tical use. The senator and the " obiter 
dicta" urged the theory that the general 
government held title to the land in trust 
for the respective states ; that the states, as 
equitable joint owners, had a right to enter 
into possession in common, their slaves 
being covered by their respective state laws, 



98 WASHINGTON VERSUS JEFFERSON 

with the same effect as if the land were 
within their state boundaries. But the en- 
tire Supreme Court of the United States, 
speaking judicially, and not as " obiter 
dicta/' in 1816, 1819, and 1824, had de- 
cided that the national government held 
power and title as the representative of 
" the people of the United States," and not 
as representative of the states, with full 
power to make all needful rules and regula- 
tions as to the territory, looking to the 
welfare of the whole people. The words of 
George Mason, of Virginia, in 1787, and 
of Judge Thurman, of Ohio, in 1847, made 
plain that that welfare could not be pro- 
moted by a congressional slave code. 

In April, 1860, the Democratic National 
Convention met at Charleston, South Caro- 
lina. It was asked to place in its platform 
the substance of Senator Davis's fourth and 
fifth resolutions. On April 30, by a vote 
of 165 to 138, it substituted for them the 
following : — 

" Resolved, that all questions in regard 
to the rights of property in states and terri- 
tories arising under the Constitution of the 
United States are judicial in their character, 



ROW CIVIL WAR WAS PREVENTABLE 99 

and the Democratic party is pledged to 
abide by and faithfully carry out such de- 
termination of these questions as has been 
made, or may be made, by the Supreme 
Court of the United States." 

As the demand made by the Davis reso- 
lutions grew out of the " obiter dicta " of 
the ^ye judges in the Dred Scott case, and 
section 2, article III. of the Constitution 
expressly gave to that court jurisdiction of 
" all cases, in law and equity, arising under 
this Constitution, the laws of the ttiited 
States, and treaties made or which shall be 
made, under their authority," it would seem 
that the majority of the convention pledged 
the party to all that any portion of any 
party or country had any right to demand, 
and to all that the party could rightfully 
promise. 

But under the Jeffersonian-Calhoun-Davis 
doctrine, that judicial article III. of the 
Constitution was always read as if it had 
subjoined to it the following words : Pro- 
vided, however, that whenever the sovereign 
people of any state by a majority vote taken 
in convention shall decide that any enact- 
ment made by the Congress is unconstitu- 



100 WASHINGTON VERSUS JEFFERSON 

tional, or that the general government does 
not possess a power by it claimed; from the 
time of said vote in state convention said 
enactment of the Congress shall have no 
force, and the general government shall not 
exercise said power, within the limits of said 
state, or as to any citizen or resident of said 
stiaLe. 

While, therefore, the advocates of a con- 
gressional slave code were willing to use 
the "• obiter dicta " of said five judges in 
order to induce the party and Congress to 
vote for such a code, they were unwilling 
to commit themselves to an admission that 
any state was under obligation to obey a 
decision of the United States Supreme Court 
unless said state should approve said deci- 
sion. 

There was also serious doubt about the 
nature of the decision the Supreme Court 
would make upon the question raised by the 
Davis resolutions. Justice Daniel, one of 
the five, was about to die ; Justice Clifford, 
of Maine, sat in Curtis's place. Their 
utterances in the Dred Scott case plainly 
indicated that neither Catron nor Nelson 
believed in the doctrine. Grier, who had 



HOW CIVIL WAR WAS PREVENTABLE 101 

eome upon that bench ten years after Taney, 
had concurred with Taney in denying to 
Congress power to prohibit slavery in a ter- 
ritory; but he might not go so far as to 
construe words intended to secure to a mas- 
ter the return of an escaped slave to the 
state in which his service w^as due, as mak- 
ing it the duty of Congress to pass laws to 
enable that master to take said slave or any 
slave to free territory, and there hold him 
in bondage. The action of the secession 
leaders had been deliberately planned. Al- 
though the demand for a congressional slave 
code was first made about seventy years after 
Washington's first inauguration, although 
it required their party to adopt a doctrine 
directly opposed to its platform of 1856, 
and also to the almost unanimous leo^islative 
action of the South in Congress in 1854, 
men who had long wished to force secession 
induced Alabama, in 1860, to instruct her 
delegates to withdraw from the National 
Democratic Convention unless that body 
would place the slave code resolutions in its 
platform. 

After the vote of April 30, 1860, herein- 
before stated, the delegates from Alabama, 



102 WASHINGTON VERSUS JEFFERSON 

Mississippi, Louisiana, South Carolina, Flor- 
ida, Texas, and Arkansas withdrew from 
that convention. This divided the Demo- 
cratic party, and made probable the election 
of the Republican candidate. 

I have already stated that the repeal of 
the prohibition of 1820 shocked the convic- 
tions of such masses of men that the vote 
cast in 1856 against the extension of slavery 
leaped up to 1,341,264, more than nine 
times as many as Hale had received in 1852. 
This new demand for a congressional slave 
code had a like effect upon large masses of 
men who in 1856 had voted for Buchanan. 
In that year the conservative states of New 
Jersey, Pennsylvania, Indiana, and Ilhnois 
had continued to vote for Democratic elec- 
tors. But men who believed as George 
Mason, as the great majority of the Consti- 
tutional Convention, of our presidents, of 
our statesmen, and of our people had firmly 
believed, that " Slavery discourages arts and 
manufactures ; that the poor despise labor 
when performed by slaves ; that they pre- 
vent the emigration of whites who really 
enrich and strengthen a country ; that they 
produce the most pernicious effect on man- 



HOW CIVIL WAR WAS PREVENTABLE 103 

ners ; that every master of slaves . is born a 
petty tyrant ; that they bring the judgment 
of Heaven on a country ; that it is essential 
in every point of view that the general 
government should have power to prevent 
the increase of slavery," could never vote 
for a congressional slave code. 

In November, 1860, these people replied 
to the demand for a slave code by increasing 
the vote for Abraham Lincoln to 1,866,352, 
a gain of 525,088, almost 40 per cent., and 
gave him the electoral vote of sai(^ four 
conservative states — except three that New 
Jersey cast for Douglas, who also had re- 
fused to vote for a slave code. Southern 
politicians and people failed to understand 
the nature and basis of Northern opinion. 
Even Mr. A. H. Stephens, of Georgia, sup- 
posed them to be fanatics — excited by hos- 
tility to the South, etc. In fact, the growth 
and labors of "abolition societies," as such, 
had ceased when the repeal of the Missouri 
Compromise made known to Northern peo- 
ple everywhere that the time for putting an 
end to slavery extension had come ; that 
they must maintain the doctrine of the 
fathers of the Constitution, or a fatal change 



104 WASHINGTON VERSUS JEFFERSON 

in our institutions would be made. Enough 
conservatives moved so slowly that another 
Democratic president succeeded Pierce. But 
the ill-considered demand for a congressional 
slave code aroused even these conservatives, 
and their accession to the Republican party 
elected Lincoln. The following words, 
spoken by Mr. Lincoln in 1858, during his 
debate with Douglas, show that the 1,866,352 
did not vote for a fanatic or for an enemy 
of the South. 

"Is not Congress itself bound to give 
legislative support to every right that is 
established in the United States Constitu- 
tion? A member of Congress swears to 
support the Constitution of the United 
States ; and if he sees a right established 
by that Constitution which needs specific 
legislative protection, can he clear his oath 
without giving that protection ? Let me 
ask you why many of us who are opposed 
to slavery upon principle, give our acqui- 
escence to a fugitive slave law? Why do 
we hold ourselves under obligations to pass 
such a law, and to abide by it when it is 
passed? Because the Constitution makes 
provision that the owners of slaves shall 



HOW CIVIL WAR WAS PREVENTABLE 105 

have a right to reclaim them. It gives the 
right to reclaim slaves, and that right is, as 
Judge Douglas says, a barren right unless 
there is leoislation that will enforce it. The 
mere declaration, ' No person held to ser- 
vice or labor in one state under the laws 
thereof, escaping into another shall, in con- 
sequence of any law or regulation therein, 
be discharged from such service or labor, 
but shall be delivered up on claim of the 
party to whom such service or labor may be 
due,' is powerless without specific legislation 
to enforce it. Now, on what ground would 
a member of Congress who is opposed to 
slavery in the abstract, vote for a fugitive 
slave law, as I would deein it my duty to 
do f Because there is a constitutional right 
which needs legislation to enforce it. And 
although it is distasteful to me, I have 
sworn to support the Constitution ; and 
having so sworn, I cannot conceive that I do 
support it if I withhold from that right any 
necessary legislation to niake it practical." 

I do not think that Senator Davis, in 1860, 
wished for secession. But Mr. Yancey, of 
Alabama, many leading men in South Caro- 
lina, and some others had long desired to 



106 WASHINGTON VERSUS JEFFERSON 

break up the Union. These men made use 
of Mr. Davis in the Senate and before 
the people. When their efforts dissolved 
the Democratic convention, in April, 1860, 
they and their followers were joyous ; they 
deemed successful secession assured. After 
the North had consented to the removal of 
the statute that since 1820 had prohibited 
slavery, and had yielded obedience to legis- 
lation framed by the South, the South for 
the first time demanded that men who be- 
lieved slavery an evil and a wrong should 
vote for a code of slave laws. Because this 
was refused, men who had predetermined 
upon secession misled the Southern people 
into what became the war of 1861-65. 

By November 15, 1860, the detailed re- 
sult of the election held on the 6th of that 
month had become known. If Senator Jef- 
ferson Davis had then consulted Common 
Sense as his oracle, something like the fol- 
lowing dialogue might have followed : — 
Dams. " What is the situation ? " 
Common Sense, " Abraham Lincoln, a 
man born in Kentucky not far from your 
own first home, whose manhood has been 
lived in Illinois, while your own has been 



HOW CIVIL WAR WAS PREVENTABLE 107 

in Mississippi, has been elected President by 
a majority of the electoral vote, while the 
aggregate popular vote against him exceeds 
that for him by about 900,000. 

" He can, if he shall hve, be President for 
four years from March 4, 1861. During 
his first two years the Democratic party, in- 
cluding all congressmen from the South, 
will control both houses of Congress ; they 
will have a majority of 8 in the Senate and 
16 in the House. No new laws can be 
made and no old ones repealed without the 
consent of that party prior to March, 1863. 
Unless the Republicans shall so gain at the 
elections of 1862 as to secure a majority in 
both houses, no legislation not approved by 
the Democratic party can be enacted during 
Mr. Lincoln's term of office. His party is 
composed of men who have voted together 
solely in order to prevent the extension of 
slavery into free territory. The Kansas ex- 
periment has proved that no congressional 
prohibition is necessary in order to prevent 
the conversion of any territory now free 
into a slave state. The Republican leaders 
understand this. No attempt will be made 
to enact any such prohibitory law. The 



108 WASHINGTON VERSUS JEFFERSON 

Democratic future seems to me bright. As 
that party is not strong enough in either 
house to overcome a veto, no extreme pro- 
slavery or Democratic partisan measure can 
be successful, and the wise heads will take 
care that none such shall be favorably re- 
ported by any committee. The country will 
be satisfied that there is no danger of 
the extension of slavery into free territory ; 
that question will cease to be the prominent 
one ; the Republican party has not lived 
long enough to fuse its heterogeneous ele- 
ments ; before two years, so many will have 
left it that the majorities against it in the 
next Congress will be larger than they are 
now : and in 1864 the Democratic party, 
reunited and refreshed by four years' ab- 
sence of internecine war, will perhaps place 
you in the presidential chair. The South 
is in no real danger of losing honor, pro- 
perty, or prosperity because of this election. 
That Southern statesman who can quiet her 
unfounded apprehension and repress her un- 
necessary excitement will merit and will gain 
the good will and the support of the vast 
majority of the people. His opportunity is 
unexampled." 



HOW CIVIL WAR WAS PREVENTABLE 109 

Davis. " But Lincoln can fill all federal 
offices in our states with men hostile to 
slavery and to our people. His officials can 
do great harm." 

Common Sense. " A Democratic Senate, 
in which Southern senators control the cau- 
cus, must confirm his nominees. They will 
reject the unworthy and the unsuitable." 

Davis. " How can we submit to a Presi- 
dent so hostile to our institutions ? To do 
so would dishonor our people." 

Common Sense. " Mr. Lincoln aryl the 
platform of his party treat of slavery in sub- 
stantially the same words that George Ma- 
son, of Virginia, used in the convention of 
1787, that Jefferson and many other South- 
ern statesmen have both spoken and written. 
The Chicago platform of 1860 resolved in 
substance that another slave state should 
not be made out of free territory. George 
Mason said in 1787 that it was essential that 
the general government should have power 
to prevent the increase of slavery. Six 
slave-holding presidents have approved laws 
prohibiting the entrance of slavery into ter- 
ritory named therein. How can the South 
be dishonored because a man holding the 



110 WASHINGTON VERSUS JEFFERSON 

same opinions about slavery that so many 
Southern statesmen have spoken and writ- 
teUj will sit in the presidential chair ? " 

Davis, " What about the fugitive slave 
law ? " 

Common Sense, " It is and will remain 
in full force, unless the Democratic Congress 
shall alter it ; and that is not at all prob- 
able." 

Davis. " But will Lincoln execute it? " 

Common Sense. " If you will read what 
he said at Jonesboro, Illinois, on September 
15, 1858, in a public speech, part of his 
debate with Douglas, you will see that he 
holds that the South has a right to the full 
enforcement of the fugitive clause of the 
Constitution ; and that, if existing legisla- 
tion shall be found inefPectual, every con- 
gressman is bound by his oath to vote to 
make it effectual. 

" Moreover, the fact that that speech was 
made in the hearing of thousands, was pub- 
lished and read everywhere at the North 
for two years prior to his nomination and 
election, indicates that the masses of the 
Republican party also recognize that consti- 
tutional right of the South." 



HOW CIVIL WAR WAS PREVENTABLE 111 

Davis. " If I could only feel sure of the 
future ! " 

Common Sense. " The future is yet 
within easy control of the South and the 
Democratic party. The Republican party 
must of necessity — because of the diverse 
nature of its elements — speedily dissolve, 
unless the South, by attempting measures 
that cannot possibly help slavery, shall force 
those elements to still adhere to each 
other." 

Dams. " But will the North lea^ the 
South and its institutions alone ? " 

Common Sense. " Their conduct since 
1846 furnishes ample proof that they will. 
In 1847 they made known, by a heavy ma- 
jority in the House of Representatives, that 
they were of opinion that slavery ought to 
be prohibited from entering any territory 
that Mexico might cede to us. Judge Thur- 
man, of Ohio, stated their reasons. But they 
yielded to the earnest opposition of the 
South, and consented to the establishment 
of slavery in the 488,000 square miles of 
Utah and New Mexico (as they then were) 
if their people should so wiU. So by Octo- 
ber, 1850, the position of the entire terri- 



112 WASHINGTON VERSUS JEFFERSON 

tory of the nation in relation to the entrance 
of slavery was fixed and determined by law; 
the acts as to Oregon, Minnesota, and all of 
old Louisiana and Texas north of 36° 30', 
and the compromise measures of 1850, were 
all in full force. That the acts organizing 
Utah and New Mexico were not intended in 
any manner to affect the prohibitory clauses 
of the Acts of 1820 (Missouri), 1845 (Texas), 
1818 (Oregon), and 1819 (Minnesota), is 
shown by the fact that no proposal to repeal 
or amend any of those acts was even offered 
in either house of Congress. 

" The North joined the South in the 
pledge of 1852, " to resist every attempt to 
reopen the slavery question ; " and all of its 
states except Massachusetts and Vermont 
voted with you for a President known to be 
most friendly to the South ; and supported 
him by heavy majorities in each house of a 
Congress equally friendly to you. The coun- 
try was as quiet as a Quaker meeting until 
the repeal of the Missouri Compromise rang 
the alarm bell throughout the North. The 
pledge in the Cincinnati platform, to let the 
people in the territories by free vote settle 
the slavery question for themselves, caused 



HOW CIVIL WAR WAS PREVENTABLE 113 

the choice, in 1856, of another President 
and Congress friendly to the South. Mr. 
Buchanan's assurance, made through Grov- 
ernor Walker, that the people of Kansas 
should have free and fair elections and the 
right to vote upon their constitution, not 
only restored quiet in that disturbed terri- 
tory, but so affected elections elsewhere that 
Governor Chase, of Ohio, whose plurality in 
1855 had exceeded 15,000, in October, 1857, 
barely reached 1500 ; a decrease of ninety 
per cent. ^ 

'' The failure to support Governor Walker, 
and the attempt to compel Kansas to ac- 
cept a constitution on which her people 
had not been permitted to vote, again 
sounded the alarm bell, and the elections of 
1858 resulted in a house which chose a Re- 
publican speaker. The fact that the end of 
the Kansas struggle, in August of that year, 
had given its people full control of their 
territory, had begun to quiet the country 
when, once more, the South rang the alarm 
bell by demanding a congressional slave 
code. You see the result of that in the 
election of November 6, just had. These 
facts convince me that no legislation injuri- 



114 WASHINGTON VERSUS JEFFERSON 

ous to the South, its domestic institutions, or 
its people will be had during the Congress 
of 1861-63 ; and it will be the fault of the 
South herself if Democratic majorities shall 
not be materially increased by the elections 
of 1862." 

Davis. " In time free immigration will so 
add to the number of free states that they 
may abolish slavery in the states by amend- 
ing the Constitution. Can we escape that 
danger unless we now secede ? " 

Common Sense, " The action of the 
North since 1845, just related to you, satisfies 
me that the people there have no intent to 
interfere with slavery in the states ; and that 
they will now, if the South shall so desire, 
so amend the Constitution that no future 
amendment shall affect slavery within any 
state unless that state shall itself consent 
thereto. The Northern people, as a mass, 
prefer business to politics \ and they under- 
stand that business prosperity is promoted 
by quiet, content, and good order among the 
people. Unless you rouse them by some 
demand that they shall do or consent to 
some action that in their belief is wrong, 
they will continue to permit Southern poli- 



HOW CIVIL WAR WAS PREVENTABLE 115 

ticians and statesmen to have a controllinof' 
influence in general administration, as tliey 
have done for more than three fourths of 
the life of our national Constitution." 

Davis. " The South feels aggrieved by 
the ' personal liberty ' bills passed by legis- 
latures of Northern states." 

Common Sense. " None of these inter- 
fere with the effective execution of the fugi- 
tive slave law except those of Massachusetts, 
Vermont, Michigan, and Wisconsin. The 
supreme courts of every state in whioia the 
question has been htigated, except that of 
Wisconsin, have adjudged unconstitutional 
all their provisions that conflict with said 
fuoitive slave law. The Wisconsin cases 
were taken to the Supreme Court of the 
United States ; and since that court, by a 
unanimous judgment, in 1858 reversed the 
holclino; of the Wisconsin court, there has 
been no trouble in that state. The habits 
of thinking of the Northern people ^vill not 
tolerate disobedience to a decree of the 
national Supreme Court, and its writs and 
orders are enforced. It is not the Northern 
habit to repeal or amend a statute after it 
has been adjudged unconstitutional by the 



116 WASHINGTON VERSUS JEFFERSON 

court of last resort, except where the statute 
can be made constitutional by amendment. 
After a final judgment that a statute is un- 
constitutional they treat it as so much waste 
paper, notwithstanding it remains in print 
in the statute book. The present fugitive 
slave law has been in force ten years. The 
census reports show that the number of 
slaves who escaped in 1850 was 1011 ; the 
number in 1860 was only 803. During the 
ten years the total number of slaves had in- 
creased by about 500,000 ; yet there was a 
decrease of over 20 per cent, in the number 
of fugitives, and a decrease of a larger per 
cent, of fugitives for each 100,000 slaves. 
The South need suffer no disquiet because 
of said ' personal hberty ' bills." 

Davis. " Our people, nevertheless;, are 
uneasy and excited. What is the best 
course to pursue ? " 

Common Sense, "Before I nam^e that 
course, let me convince you of one or two 
facts not yet fully considered. When the 
Democratic and Whig national conventions 
met in 1852, the South was so well satisfied 
with the national laws in regard to slavery 
then in force that she joined heartily in 



HOW CIVIL WAR WAS PREVENTABLE 117 

the j)ledge adopted by both parties ' that 
thej would resist every attempt to reopen 
the slavery question.' Logic will not permit 
you to deny that a proposal to repeal one of 
the laws in regard to slavery then in force 
was ^ an attempt to reopen the slavery ques- 
tion/ or that said pledge required both of 
said great parties to resist any proposal to 
repeal either of said laws. Those who re- 
sisted the repeal of the Missouri Compromise 
strictly obeyed the platform of 1852. The 
entire slavery struggle from January, 1854, 
to November 6, 1860, on the part of the 
North, has been to restore and maintain, in 
substance, the laws as to slavery as they 
were in 1852. In fact, therefore, during all 
of said years the North has been on the 
defensive and not aggressive. As to the 
right of secession a few words. No intelli- 
gent, educated man now denies ^ the right of 
revolution,' the right of an oppressed com- 
munity to free itself from its oppressor. 
The North does not deny that every state 
may, in a proper case, effect a revolution. 
It does deny that any state in the Union 
under the Constitution of the United States 
has a right to peaceably withdraw therefrom 



118 WASHINGTON VERSUS JEFFERSON 

at its own pleasure ; and it denies that any 
state is now suffering or is likely to suffer 
any oppression or denial of rights by the 
national government, or to be willfully 
wronged by any sister state. To admit a 
right to peaceably secede is, as Washington 
in 1798 wrote to Lafayette, to make the 
Constitution a mere cipher — a nothing. 
Therefore the North must and will maintain, 
to the full extent of its power, obedience to 
that Constitution and the laws made pur- 
suant thereto by all the people, no matter 
in what state they reside, no matter what 
official position they hold. Nothing stands 
between any man (within any of the states) 
and that Constitution and those laws. The 
nation does not declare war against a state 
in order to enforce the nation's laws ; it 
addresses itself through its own officers to 
its own citizens or residents. If the latter re- 
sist in such numbers that peace officers can- 
not control them, the national forces must 
be used to compel obedience to law. Gov- 
ernor Pickens is as to national laws a simple 
citizen, bound to the same obedience as any 
John, Tom, or Harry. If the state authori- 
ties attempt to prevent the enforcement of a 



HOW CIVIL WAR TV AS PREVENTABLE 119 

national law, they make themselves crimi- 
nal ; no state law can justify or shield 
them. Resistance by the state may produce 
a state of war because of the magnitude 
of that resistance, but such war is not de- 
clared or made by the nation. 

" This question of the maintenance of the 
Constitution and of the national govern- 
ment is one of principle and duty. The 
Anglo-Saxon race has always fought stur- 
dily to maintain its convictions about such 
questions. The Northern people are imainly 
of that race ; and what is called ' the right 
of secession ' can be established only by de- 
feating them by war. The Southern peo- 
ple are of the same race, and will fight 
sturdily for their convictions unless some 
means for averting war can be devised. If 
war shaU come it will be ' f oug-ht out ' in 
old Anglo-Saxon, Anglo-Norman style. It 
has usually required much time to convince 
either side that it was whipped for good 
and all. In their wars a great many peo- 
ple get hurt or killed. 

" Now for my suggestions : The South- 
ern people have a natural love of right, a 
high sense of honor, a liking for fair play. 



120 WASHINGTON VERSUS JEFFERSON 

You are regarded by tliem as a leader. 
They know that you will never counsel 
them to dishonor. They believe in your 
bravery and truth. The present peril ex- 
ists because they are ignorant of the actual 
facts : ignorant of the real nature of what 
has been done since 1852, and ignorant of 
the objects and purposes of the Republican 
party and of Mr. Lincoln. 

" If this gallant people of the South can 
be convinced that the North and the Repub- 
lican party have simply striven to maintain 
the party pledges of 1852, to restore and 
maintain the legal position of slavery pre- 
cisely as it was under the laws in force in 
that year; that Mr. Lincoln in 1858 made 
his opinions as to the fugitive slave clause 
widely known at the North; and that he 
was nominated and elected with full know- 
ledge that he would maintain your consti- 
tutional rights under that clause, they will 
be freed from all apprehension of evil to 
the South ; they will gladly declare their 
willingness to resume the ' Quaker quiet ' 
of 1852-53 and to leave all laws as to sla- 
very in the territories precisely as they are. 
South Carolina has called a convention. It 



HOW CIVIL WAR WAS PREVENTABLE 121 

will not do to await its meeting. Ask per- 
mission, forthwith, to address the South 
Carolina legislature upon ^ The Situation.' 
They will be glad to hear you. Tell them 
these truths in your own manly and elo- 
quent manner. Have your speech tele- 
graphed, and printed everywhere the next 
morning. Within three months the South- 
ern people (except the men who for many 
years have wished to break up the Union) 
will be hurrahing for Davis and the Union ! 
Within a year you will be the mostv pop- 
ular man from Passamaquoddy Bay to San 
Diego." 

Unfortunately no such interview between 
Senator Davis and " Common Sense " took 
place in the fall of 1860. 



WHY ELEVEN STATES SECEDED 

The South complained in 1860 that the 
North had refused to fulfill the constitu- 
tional duty imposed by paragraph 3 of sec- 
tion 2y article lY. of the Constitution 
known as " the fugitive slave clause." 

I will outline what was done^ between 
1789 and 1861^ about fugitive slaves. 

Section 2, article TV., by its second clause 
provided that " a person charged in any state 
with treason^ felony, or other crime, who 
shall flee from justice, and be found in an- 
other state, shall, on demand of the exec- 
utive authority of the state from which he 
fled, be deHvered up to be removed to the 
state having jurisdiction of the crime." 

The third clause is the one heretofore 
quoted about fugitives " held to service or 
labor." 

In 1791 an indictment found in a Penn- 
sylvania court charged three men with a 



WHY ELEVEN STATES SECEDED 123 

crime, under a statute of that state which 
punished kidnaping a person of color, and 
carrying him or her beyond the state, as a 
felony. The three men had gone to Vir- 
ginia. The executive of Pennsylvania had 
made demand, under said second clause, 
upon the Governor of Virginia for them as 
fugitives from justice. He submitted the 
case to the Attorney-General of Virginia, 
who was of opinion : - — 

1. That the offense charged was not such 
a crime as under the Constitution req^uired 
a surrender ; and 

2. " That control over the persons 
charged ought not to be acquired by any 
force not specified and delegated by positive 
law." So the demand was refused. 

The correspondence between the gover- 
nors, as well as the opinion of the Attorney- 
General of Virginia, with the other papers 
relating to the case, were transmitted to Pre- 
sident Washington, who laid them before 
Congress. This resulted in an act entitled 
" An act respecting fugitives from justice, 
and persons escaping from the service of 
their masters," which passed without oppo- 
sition and was approved by Washington 



124 WASHINGTON VERSUS JEFFERSON 

on February 12^ 1793. This gave to tlie 
master a summary remedy under which he 
might either seize and remove to his own 
state his escaped slave, or cause the arrest 
and delivery to him of the fugitive by any 
of certain magistrates and their officers/ 
either national or state. This law was held 
constitutional by the whole court in Prigg v, 
Pennsylvania, 16 Howard, 539, at January 
Term 1842. A majority of the court held 
that under clause three of article IV. the 
nation alone was charged with providing 
the necessary legislation for the enforce- 
ment of that clause, and that it did not 
impose any duty upon the state except to 
place no obstruction in the way of such en- 
forcement. 

On the 18th of September, 1850, an act, 
drafted by Senator James M. Mason, of Vir- 
ginia, entitled " An act to amend," and sup- 
plementary to the act entitled " An act 
respecting fugitives from justice and per- 
sons escaping from the service of their 
masters, approved February twelfth, one 
thousand seven hundred and ninety three," 
was passed by Congress and approved by 
President Fillmore. This act very largely 



WHY ELEVEN STATES SECEDED 125 

increased the number of national magistrates 
and officials authorized and required to act 
upon complaint of a master or his agent ; 
gave to each official power to call on citizens 
to act as his posse comitatus ; directed the 
officer to take the fugitive " forthwith " 
before the court ; and the magistrate " to 
hear and determine the case of such claim- 
ant in a summary manner/' upon deposition 
or affidavit in writing, or by other satisfac- 
tory testimony, and " icith proof also hy 
affidavit of the identity of the person w^ose 
service or labor is claimed to be due as 
aforesaid, that the person so arrested does 
in fact owe service or labor to the person 
or persons claiming him or her in the state 
or territory from which such fugitive may 
have escaped as aforesaid, and that said per- 
son escaped, to make out and deHver to such 
claimant, his or her agent or attorney, a 
certificate setting forth the substantial facts 
as to the service or labor due from such 
fugitive to the claimant, and of his or her 
escape from the state or territory in which 
such service or labor was due, to the state 
or territory in which he or she was arrested, 
with an authority to such claimant, or his 



126 WASHINGTON VERSUS JEFFERSON 

or her agent or attorney, to use such reason- 
able force and restraint as may be necessary, 
under the circumstances of the case, to take 
and remove such fugitive person back to 
the state or territory whence he or she may 
have escaped as aforesaid. In no trial or 
hearing under this act shall the testimony 
of such alleged fugitive be admitted in evi- 
dence ; and the certificates in this and the 
fourth section mentioned, shall be conclu- 
sive of the right of the person or persons in 
whose favor granted, to remove such fugi- 
tive to the state or territory from which he 
escaped, and shall prevent all molestation of 
such person or persons by any process is- 
sued by any court, judge, magistrate or 
other person whatever." 

Said act punished heavily by fine and 
imprisonment every person who failed to do 
what it required of him, or obstructed or 
interfered with its execution. It was framed 
by Senator Mason with great care, and was 
supposed to fuUy provide everything re- 
quired of the nation under said clause three. 
The United States courts, including the 
Supreme Court, held this law constitutional. 
The supreme courts of all the states except 



WHY ELEVEN STATES SECEDED 127 

Wisconsin held themselves bound by that 
ruling of the national Supreme Court. 
Where a subordinate state court held other- 
wise, the state supreme court (except that 
of Wisconsin) reversed the subordinate de- 
cision. The Wisconsin case was taken from 
the Supreme Court of that state by due 
course of proceeding, and the national 
Supreme Court reversed the judgment by 
which the state court had discharged a de- 
fendant who had been convicted of violating 
the above quoted Fugitive Slave Act,^and 
he was again taken into custody. See Aker- 
man v. Booth, 21 Howard, 526. 

The national authorities, from the Presi- 
dent down, were active and efficient in exe- 
cuting said law. In the few cases in which 
any body of the people attempted to mob 
those doing duty under the law, the vio- 
lence was promptly suppressed or prevented 
by detachments from the army or navy. 

The faithfulness and efficiency of the 
nation in its discharge of this constitutional 
duty was made evident by the census re- 
ports of 1850 and 1860. 

The total number of fugitive slaves re- 
ported in 1850 was 1011 -, the total number 



128 WASHINGTON VERSUS JEFFERSON 

reported in 1860 was 803, a decrease of 
one fifth. 

The nation had no duty to discharge in 
the way of preventing the escape of a fugi- 
tive from the state in which he was held to 
service or labor ; its sole duty was to furnish 
by legislation proper means for effecting his 
return, and, by a sufficient number of offi- 
cers, due diligence in executing said law. 
In 1793 and 1850, Congress legislated as 
the senators and representatives of the slave- 
holding states desired it to do. I have 
never read or heard of any claim made by 
Southern congressmen that the Act of 1850 
ought to be or could be amended so as to 
make it more efficient ; or that the national 
authorities and officials were careless, negli- 
gent, inefficient, or remiss in the execution 
of said law. 

But they did make accusations and com- 
plaints against the states. In 1842, the 
Supreme Court had decided that the Con- 
stitution did not impose any duty upon any 
state under the fugitive slave clause. 

Every officer and legislator of every state 
was a citizen of the United States and in- 
dividually indictable under the Act of 1850, 



WHY ELEVEN STATES SECEDED 129 

if any act of his interfered with any magis- 
trate or officer in the execution of said law, 
or aided or abetted the escape of any fugi- 
tive. As abeady stated, no claim was ever 
made that the national officers and courts 
failed to do their duty under said law. 

The Southern complaints were based upon 
certain statutes of sundry Northern states 
commonly called " personal liberty bills." 
On December 11, 1860, " The National 
Intelligencer," the well-known conservative 
Whig daily newspaper, so long publishad at 
Washington city by Gales & Seaton, printed 
a careful analysis and review of aU North- 
ern personal liberty bills. I quote their 
conclusion : — 

" It will be seen from the review through 
which we have gone that veri/ feio states 
have enacted laws directly or avowedly in 
opposition to the Act of 1850. Laws against 
' kidnaping,' properly so-called, cannot be 
placed in this category. Laws forbidding 
under this head the use of state jails for 
Federal purposes, however unfriendly in 
motive, are not unconstitutional, and find 
parallels in other cases and in Southern 
states. Laws forbidding states officers to 



130 WASHINGTON VERSUS JEFFERSON 

issue writs for the recapture of alleged fugi- 
tives are passed in conformity with the 
decision of the Supreme Court of the United 
States in the celebrated Prigg case. But 
all laws interfering with the exercise of the 
powers conferred by Congress on the com- 
missioners appointed under the Fugitive 
Slave Law of 1850, as is the case with the 
laws of Vermont, Massachusetts, Michigan 
and Wisconsin, are clearly unconstitutional 
and are null and void." 

Let me briefly explain how the so-called 
" personal hberty bills " came into exist- 
ence. Under the terms of the " fugitive " 
clause of the Constitution the claimant of 
an escaped slave was entitled to a summary 
remedy. All summary remedies furnish am- 
ple facilities for fraud. It was charged and 
believed at the North, that under the acts of 
1793 and 1850 free persons of color were 
sometimes arrested upon fraudulent papers, 
supported by perjured affidavits, " delivered 
up " to claimants to whom no service was 
due, and sold as slaves in the far South. 
The mode of proceeding was about thus : 
A, B, C, D, and E (bad men of both sec- 
tions) formed a secret partnership for the 



WHY ELEVEN STATES SECEDED 131 

purpose of selling free negroes at New Or- 
leans or other far Southern markets. They 
secured on each venture the names and 
descriptions of several colored persons of 
suitable age, health, etc., who had recently 
removed to the localities in which they were 
then respectively employed. Then before 
Southern magistrates, who were ignorant of 
the fraud, two or three of the confederates 
would make the necessary affidavits, using 
said names and descriptions, and adding 
false statements as to former servitjide, 
escapes, etc., the confederates being named 
alternately as owner and claimant of an 
alleged fugitive, or as witness for the others. 
It was easy to thus obtain the formal certifi- 
cates, seals, etc., to authenticate their papers, 
and to appear before a commissioner in 
each locality with " sufficient testimony " to 
secure, after a " forthwith " and " summary " 
hearing, the document giving full power to 
convey the fugitive to " the state from which 
he fled." Such " fugitives," although so 
surrendered for return to Virginia or Ken- 
tucky, could be put upon steamers at Wheel- 
ing, Parkersburg, or Louisville, and sold at 
Memphis or New Orleans. This made it, 



132 WASHINGTON VERSUS JEFFERSON 

generally, impossible for the person so sold 
to regain freedom. 

It was the duty of each state to protect 
its people from illegal and fraudulent seiz- 
ures. Each one had full right to make such 
frauds criminal ; to indict, arrest, and punish 
every person who could be proved guilty. 
While the state and its officers could not 
lawfully obstruct any national officer in the 
execution of any writ legally issued to him 
under national authority, or prevent the 
true owner of an escaped fugitive, or his 
duly authorized agent or attorney, from 
transporting the slave to the state in which 
the service or labor was due, it was the 
state's duty to arrest, prosecute, convict, and 
punish the perjurer and the kidnaper. As 
shown by the investigation of the " National 
Intelligencer," the great majority of the so- 
called '' personal liberty bills " were enacted 
for this perfectly constitutional purpose, or 
were passed pursuant to the rulings of the 
Supreme Court in Prigg v, Pennsylvania, 
heretofore cited. 

But many lawyers and others at the 
North believed that the Fugitive Slave Law 
of 1850 was in material particulars uncon- 



WHY ELEVEN STATES SECEDED 133 

stitutional. Their opinions induced the legis- 
latures of Vermont, Massachusetts, Michigan, 
and Wisconsin to incorporate in their stat- 
utes against kidnaping, provisions intended 
to prevent the enforcement of those parts of 
the Fugitive Slave Law that they believed 
to be unconstitutional. As already stated, 
the Supreme Courts of those states (except 
that of Wisconsin in 1855) did not share 
these legislative opinions. They ruled in 
obedience to the Supreme Court of the 
United States. Even in Wisconsin no%fur- 
ther obstruction to the regular proceedings 
of the national ofi&cers, under the Act of 
1850, was attempted after Akerman v. 
Booth, 21 Howard, 526, was decided at 
December term, 1858. 

In fact, before the Democratic conven- 
tion met at Charleston, in April, 1860, the 
Northern " personal liberty bills " which con- 
tained any unconstitutional provisions had 
become so much " waste paper." 

Unfortunately the South did not under- 
stand, in this matter, the habits of thought 
of the North. In South Carolina and 
Georgia ^' The State " was held in such 
preeminence that a statute of their state 



134 WASHINGTON VERSUS JEFFERSON 

was deemed in full force although the Su- 
preme Court of the United States had 
unanimously decided it to be unconstitu- 
tional. It had also been their custom, when 
they deemed it probable that the national 
courts would adjudge one of their state 
statutes unconstitutional, to pass other stat- 
utes making it a criminal offense for any 
officer of their state court to furnish any 
transcript, certificate, or other paper in aid 
of the transfer on error of any case from 
the state court to the national court, and 
also making it a crime for any person, liti» 
gant or lawyer, to do any act for the pur- 
pose of aiding in or completing said trans- 
fer. South Carolina statute books, about 
1832 and 1844, furnish notable instances 
of her legislation intended to prevent the 
United States courts from exercising the 
jurisdiction conferred upon them by the 
express words of section 2, article III. of 
the Constitution. 

In 1828 a Georgia court, in contempt 
of a unanimous judgment of the Supreme 
Court of the United States, which had 
reversed the Georgian sentence, as based 
upon an unconstitutional statute of Georgia, 



WHY ELEVEN STATES SECEDED 135 

liano'ecl a Cherokee; and the same Georoia 
court sent to and kept in the state peniten- 
tiary a Presbyterian clergyman who had 
been convicted in the state court of exercis- 
ing, within the Cherokee part of that state, 
rights held by him under the Constitution 
of the United States, its laws and treaties, 
without ha^dno^ first obtained Georoia's con- 
sent thereto. The Supreme Court of the 
United States had unanimously decided that 
the Georgia statute under which said clergy- 
man was imprisoned, was unconstiti^tional, 
and reversed the state court's sentence. 
The state authorities paid no attention to 
either of said judgments of the highest 
national court, rendered in cases expressly 
placed by the Constitution within its juris- 
diction. Neither South Carohna nor Geor- 
gia ever repealed any of said unconstitu- 
tional state statutes hecmise of any national 
coiirfs judgment. The habits of thinking 
at the North permitted a belief that an act 
of Cong-ress was unconstitutional in whole 
or in part, permitted state legislation so 
worded as to prevent the execution of said 
supposed unconstitutional congressional leg- 
islation, but fully recognized the jurisdic- 



136 WASHINGTON VERSUS JEFFERSON 

tion of the United States Supreme Court to 
finally hear and determine the constitutional 
question, and would not tolerate disobedi- 
ence to or disregard of its final judgment. 

Thus it happened that before the South 
had begun to use " personal liberty bills " 
at the North as material with which to feed 
the flames of secession, people at the North 
had become accustomed to regard all the 
unconstitutional features of those bills as 
null and void. 

As it was well known that no Southern 
state had altered or repealed a state statute 
in obedience to a judgment of the United 
States Supreme Court, Vermont, Massachu- 
setts, Michigan, and Wisconsin made no 
attempt to alter or repeal those features of 
their laws. They contented themselves with 
obedience to all national laws whose validity 
was either unquestioned, or which (having 
been questioned) had been af&rmed by the 
national Supreme Court. 

Several members of President Buchanan's 
cabinet believed in the right of secession, 
and wished their own states to secede. 
Some utterances of Attorney-General Black 
indicated his intention to urge that the 



WHY ELEVEN STATES SECEDED 137 

President's messao^e should take strons: 
ground against secession. Therefore Sena- 
tor Jefferson Da\ds, then in Mississippi, was 
called by telegram to Washington. He was 
thoroughly versed in the Calhoun doctrine, 
and was heard by the President and cabi- 
net. He failed to convince Mr. Buchanan 
that any state had a constitutional right to 
secede, but he caused him to beheve that 
the main question presented was, "Has the 
general government a right to declare war 
against a state ? " That no such right was 
mentioned in the Constitution was plain. 
He then uro^ed that the national o^overu' 
ment could enforce its laws only through 
its peace officers ; that upon the secession of 
of a state all of its citizens holding office 
under the United States would resign, and 
no others would accept their places. This 
impressed Mr. Buchanan as demonstrating 
that, while no state had a right to secede, 
the national government had no power to 
prevent it. He therefore so stated in his 
message, when Congress met in 1860, and 
added that " A Union pinned together by 
bayonets was not desirable." 

In fact, the matter was simple and clear. 



138 WASHINGTON VERSUS JEFFERSON 

No government " declares war " against its 
own citizens. When it learns that one of 
its laws is disobeyed and its enforcement 
prevented by any portion of the people, it 
calls upon them by proclamation to disperse 
to their homes and cease from illegal acts ; 
and notifies them that, if they fail to com- 
ply with the proclamation, the whole power 
of the government will be used against 
them. 

When establishing a national government 
it would be absurd to provide that it shall 
have power to declare war against any of its 
citizens. Madison understood this when he 
said, in the convention of 1787 (as I have 
hereinbefore quoted), " To use force against 
a state is more like a declaration of war 
than an infliction of punishment, and would 
be considered by the party attacked a disso- 
lution of all previous contracts. I therefore 
hope that a national system with full power 
to deal with individuals will he framed, 
and the resource he thus rendered wmeces- 
saryJ' 

The national government, having " power 
to deal with individuals " (it was immaterial 
whether those individuals were or were not 



WHY ELEVEN STA TES SECEDED 139 

state governors, or members of state legis- 
latures), had full power to make every one 
of them obey its laws, and, when neces- 
sary, to use its military arm to compel that 
obedience. By January, 1861, Attorney- 
General Black (then Secretary of State) had 
perceived the fallacy of Senator Davis's 
arguments, and declared that the national 
government had full power to compel every 
citizen to obey the national laws, sapng, 
'^ When that is done, coercion is complete." 

When President Buchanan used th% words 
" A Union pinned together with bayonets is 
not desirable," he was in mental confusion 
as to the nature of our government ; he fan- 
cied it still under something like the old 
confederacy. 

To announce that the government would 
not use force to compel its citizens to obey 
its laws is to encourage the discontented 
and the unruly ; to deprive the law-abiding 
of protection ; to incite anarchy. When, 
after hearing Senator Davis, the President 
declared his disbelief in the right of seces- 
sion, he thereby asserted that, notwithstand- 
ing the passage by a state convention of an 
ordinance of secession, every citizen of said 



140 WASHINGTON VERSUS JEFFERSON 

state would still be a citizen of the United 
States ; and that it would be not only the 
right but the duty of the United States gov- 
ernment to enforce as complete obedience to 
its laws within said state as within any other. 

Congress met on Monday, December 3, 
I860, amid general apprehension and excite- 
ment. By February 18, 1861, South Caro- 
lina, Georgia, and four of the Gulf States 
had seceded, and organized " The Confed- 
erate States " government, with its capital at 
Montgomery, Alabama. Texas seceded on 
March 1. 

During the winter many unsuccessful at- 
tempts were made to agree upon some terms 
that would recall the seceding states, and 
prevent others from going to them. Mean- 
while, as already stated, by votes of all par- 
ties in both houses of Congress, Dakota, 
Colorado, and Nevada were organized as 
territories under laws drafted by Senator 
Green, of Missouri. The entire national 
territory had then been so organized with- 
out any word prohibiting any slaveholder 
from taking his slave to whichever one he 
might select as his home. The Congress had 
also, by a two-thirds vote in each house, 



WHY ELEVEN STATES SECEDED 141 

submitted to the states an amendment to 
the Constitution providing that no future 
amendment to that instrument should per- 
mit any national interference with slavery 
in any state. 

The invalidity of the unconstitutional 
parts of the Northern " personal liberty 
bills" had been recognized, and ever since 
1858 the execution of the Fuo^itive Slave 
Law had not been interfered with. The 
census showed that the loss to the South 
in fugitives was in 1860 twenty per cent, 
less than in 1850. Mr. Lincoln had, on 
September 15, 1858, made public his opin- 
ion that every congressman was bound by 
his oath of ofB.ce to vote for all legisla- 
tion necessary to give full effect to every 
constitutional right; that the South had a 
constitutional right to an effective fugitive 
slave law ; that if additional legislation 
should be necessary to give that right full 
effect, he himself, if a congressman, would 
feel bound to vote for it, notwithstanding 
his opposition to slavery. His party, with 
full knowledge of these opinions of his, had 
nominated him and elected him, and had 
thereby indorsed them. 

The nation owned no territory in which 



142 WASHINGTON VERSUS JEFFERSON 

it was at all probable that an application 
for admission as a slave state would ever 
be made. The census showed no slaves in 
any territory except 2 in Kansas, 15 in 
Nebraska, and 29 in Utah. No legislation 
against slavery was pending. The Repub- 
lican party was in a minority of 900,000 on 
the popular vote, and in both houses of 
Congress for 1861-63. These facts showed 
that slavery was in no danger. If the Re- 
publican party should wish to legislate 
against slavery, it would have to make a 
net gain of five senators and nine represen- 
tatives at the election of 1862. 

Inasmuch as, notwithstanding the division 
of the Democratic party in 1860, a change 
of only 19,000 votes, distributed in the 
states of California, Illinois, Indiana, New 
Jersey, and Oregon, would have prevented 
the election of Mr. Lincoln, it seemed evi- 
dent that in case there should be no seces- 
sion, the power of the Republican party 
would be limited to the possession of the 
presidency and vice-presidency until 1865, 
subject to the action of a Democratic Sen- 
ate upon all appointments to of&ce. 

The laws then in force had been voted 



WHY ELEVEN STATES SECEDED 143 

for in both houses by a majority of the 
Southern congressmen, and of Democrats. 
As the Cono^ress of 1861-63 would be De- 
mocratic, unless there should be secession, 
those laws would remain in force unless a 
Democratic Congress should change them 
and a Republican President agree thereto. 
All appropriations to be made by that Con- 
gress must suit the Democratic party and a 
Repubhcan President. 

This was the situation when the Civil 
War began. ^ 

Why, then, did any slave state secede ? 

The correspondence between Southern 
governors, invited by Governor Gist, of 
South Carolina, early in October, 1860, and 
the resolutions of such legislatures as took 
any action upon the situation prior to the 
election of November 6, 1860, all made the 
taking of any step towards secession de- 
pendent upon the result of that election ; if 
either Breckinridge, Douglas, or Bell should 
be chosen, no such step would be taken ; if 
Mr. Lincoln should be elected, action was to 
follow. Logic therefore decides that the 
seven states seceded because Abraham Lin- 
coln was chosen President. 



144 WASHINGTON VERSUS JEFFERSON 

When our fathers in 1776 declared our 
independence of Great Britain^ they stated 
why they did so. That great instrument 
enumerates a long list of oppressive acts 
covering many years. No declaration or 
resolution of any seceding state names even 
one wrongful or oppressive act done to any 
state by the national government. 

Even if the " personal liberty bills " 
were being enforced by state authority^ the 
South knew that, whenever called upon, the 
United States of&cials effectively executed 
the Fugitive Slave Law, and the national 
Supreme Court deprived the unconstitutional 
features of those state laws of all force. 

The South also knew that by secession 
it would forever abandon the right to 
recover all unreturned fugitives that had 
theretofore or might thereafter escape to 
any Northern state. So secession could be 
no remedy for " personal liberty bills ; " it 
would greatly add to Southern losses. 

It is true the Democratic National Con- 
vention had refused to declare in favor of a 
congressional slave code, and it was well 
known that no such code would be enacted. 
But the correspondence of governors and 



WHY ELEVEN STATES SECEDED 145 

the action of Southern legislatures, before 
referred to, show that in case Mr. Lincoln 
had been defeated the failure to secure a 
slave code would not have caused any seces- 
sion. 

They were conscious that it would be 
absurd to secede because of the denial of 
such a demand, — a demand first made sev- 
enty years after the Constitution was rati- 
fied and six years after the South, by its 
own votes in Congress, had declared that 
" non-intervention " by Congress witlg slav- 
ery in the territories was to be the govern- 
ing " principle " for the future. 

The state secession conventions urged as 
one reason for secession the anti-slavery 
sentiment of the North. The ofreat mass of 
the Republican party thought about slavery 
just as the majority of the convention of 
1787 did, as large numbers of Southern 
statesmen had done, as almost the whole of 
Christendom did ; but they had no intent to 
interfere with slavery in the states, and in 
the territories they wished only to restore 
the situation of 1852, which the South had 
then declared to be entirely satisfactory 
to it. 



146 WASHINGTON VERSUS JEFFERSON 

A careful comparison of the secession 
lists of grievances with the declaration that 
made memorable the Fourth of July, 1776, 
will satisfy a candid mind that no Southern 
state had any cause for secession that justi- 
fied an attempt to break up a great gov- 
ernment^ and to dissolve the constitutional 
union brought about by Washington. How 
trivial the matters urged in support of the 
attempts of 1860 and 1861 appear when 
read with those on which the great declara- 
tion was based ! 

The following will show how carelessly 
those hastening into secession examined 
their supposed grievances. The South Car- 
olina convention named " tariff legisla- 
tion " as one of their " oppressions." A 
legal friend of mine in New Orleans wrote 
me, early in 1861, in support of Louisiana's 
secession, and named the tariff as one of 
her " oppressions." An examination of the 
" yeas and nays " showed that a majority of 
the South Carolina congressmen voted for 
all the tariff laws except those that were 
in force from 1791 to 1792, from 1824 to 
1833, and from 1842 to 1846. So her 
oppression from tariff had ceased fourteen 



WHY ELEVEN STATES SECEDED 147 

years before she seceded. A majority of 
Louisiana congressmen had voted for all the 
tariffs after her admission except those in 
force from 1816 to 1833. So her oppres- 
sion had ceased twenty-seven years before 
she seceded. That there existed no griev- 
ance that could justify secession or revolu- 
tion by any slave state was made evident 
by the votes taken in those states within the 
year after November 1, 1860. 

On November 6 Delaware had given al- 
most one fourth of her vote to Mr. Lkicoln, 
and had elected a congressman by the joint 
vote of the supporters of Mr. Lincoln and 
Mr. Bell, who were almost precisely equal in 
numbers. This congressman voted with the 
RepubHcans. 

Maryland, in 1861, elected Union con- 
gressmen in every district but two. 

Kentucky, on June 20, 1861, elected 
Union congressmen in every district but 
one, and on August 5 chose a legislature in 
which the Union men were more than two 
thirds of each house. Until September of 
that year, no part of the Union army had 
entered Kentucky. 

Missouri, in February, 1861, had chosen 



148 WASHINGTON VERSUS JEFFERSON 

a " Sovereign Convention/' as it was called, 
in which the Union men outnumbered the 
secessionists by more than two to one. 

Virginia also elected a convention in 
which the Union men very largely outnum- 
bered the secessionists. 

North Carohna at first voted by several 
thousand majority not to have its conven- 
tion meet at all. 

Tennessee voted by a large majority that 
no convention should meet. 

Arkansas elected a convention containing 
a majority of Union men. It met, was 
of opinion that no ordinance of secession 
should then be passed, and adjourned to 
await future occurrences. 

Thus eight of the fifteen slave states, 
whose population was 5,417,586 white and 
1,852,135 colored, did not think secession 
justifiable because of anything that had 
transpired prior to April 15, 1861. The 
seven seceded states contained only 2,618,- 
613 whites and 2,349,163 colored. South 
Carolina, which " forced the hands " of all 
the others, and so used their belief in her 
right to secede as to compel them to follow, 
contained only 291,300 whites, considerably 



WHY ELEVEN STATES SECEDED 149 

less than one half of the number of the 
soldiers who before 1865 had died in battle, 
or of wounds or disease in the war. 

The managers of the secession movement 
beheved that if a conference of South Caro- 
lina and the Gulf States should be held it 
would result in a postponement of secession. 
In this they were correct. In such a con- 
ference the real facts of the situation could 
be made to appear, and prudent and wise 
judgment would perceive the folly of seces- 
sion. They therefore pressed for "sej/arate 
state action ; " continued to make the ex- 
citable still more excited by asserting that 
delay would be dangerous, that no true 
Southern man could submit to live for 
one day as a citizen whose President was 
"a Black Republican." Their plans were 
greatly aided by the fact that for many 
years a large number of the people of 
South Carolina had been very anxious to 
go out of the Union. So South Carolina 
led the way on December 20, 1860, and the 
Gulf States and Georgia followed at short 
intervals. 

In early April, President Lincoln made 
known to Governor Pickens and General 



150 WASHINGTON VERSUS JEFFERSON 

Beauregard his intention to send provisions 
to a national garrison in a national fort ; 
they communicated this to the Montgomery 
government. Under its orders the General 
began to bombard Fort Sumter. By April 
14, 1861, the result was known at Washing- 
ton, and the national executive proceeded 
to attempt the performance of his duty " to 
execute the laws," and issued the proclama- 
tion of April 15, calling out 75,000 three- 
months volunteers. 

These facts presented to the four states 
— Virginia, North Carolina, Tennessee, and 
Arkansas — a very different question from 
the one upon which the seven states had 
seceded. 

Kentucky and Virginia had adopted as 
their creed the resolutions of 1798-99. In 
1803 Judge Tucker, in the appendix to his 
edition of Blackstone's Commentaries, had 
restated that creed thus : — 

" The Federal government then appears 
to be the organ through which the United 
republics communicate with foreign na- 
tions and with each other. Their submis- 
sion to its operation is voluntary ; its coun- 
cils, its engagements, its authority are theirs 



WHY ELEVEN STATES SECEDED 151 

modified and united. Its sovereignty is an 
emanation from theirs, not a flame in which 
they have been consumed, nor a vortex in 
which they have been swallowed up. Each 
is still a perfect state, still sovereign, still 
independent, and still capable, should the 
occasion require, to resume the exercise 
of its functions, in the most unlimited ex- 
tent." 

This is the doctrine of which Washino^ton 
wrote, " The Constitution, according to their 
interpretation of it, would be a ciphei^" and 
that measures under this doctrine, if ^'sys- 
tematically and pertinaciously pursued, must 
eventually dissolve the Union or produce 
coercion." 

When Tucker's Blackstone appeared, 
Washington and Henry were dead, and 
Jefferson was President ; Chief Justice Mar- 
shall and the Supreme Court did not make 
the first of the decisions I have cited until 
1816, and by that time it had become an 
article of the Southern creed that that court 
had no jurisdiction of such questions. 

Law students at the South studied Tuck- 
er's Blackstone. The roads to political pre- 
ferment were in the hands of JefEerson. 



152 WASHINGTON VERSUS JEFFERSON 

Here and there practical-minded, independ- 
ent thinkers concurred with Washington, 
Henry, and John Marshall ; but the mass of 
Southern people lived and died full of faith 
in the Jefferson-Tucker creed. 

Therefore, in 1861, the great majority of 
the people in said four states firmly believed 
that each state that had seceded had done 
an act which it of right might do ; that the 
general government had no right to force 
its people to submit to the national laws; 
and that it would be wrong for either of the 
four states to aid in the use of force for 
that purpose. 

When each governor telegraphed to Pres- 
ident Lincoln a refusal to furnish the regi- 
ments called for by the proclamation, that 
governor supposed that he was refusing to 
do an unlawful act. He acted upon his 
convictions of duty in like manner as the 
President acted upon his convictions. Each 
was resolved to do that which, as he under- 
stood constitutions and laws, his oath of 
office bound him to do. Because of like 
convictions the majorities in the conven- 
tions of Virginia, North Carolina, and Ar- 
kansas, and of the voters in Tennessee, 



WHY ELEVEN STATES SECEDED 153 

decided that, as war had come, and fighting 
had to be done, they would fight to main- 
tain the right of separate state secession, in 
which they felt bound to beheve. Thus the 
four states sacrificed themselves without, as 
the end proved, saving those for whom the 
sacrifice was offered. 

A candid mind, reflecting upon the facts, 
cannot help feeling surprise and astonish- 
ment because an intelligent people, whose 
leaders were able and experienced men, at- 
tempted, for reasons so plainly insuf^cient, 
to break up a great free government and in- 
curred the perils of war. Their action may 
be accounted for by the following state- 
ment : — 

The schemers who devised the plan, which 
began by inducing Alabama to instruct her 
deleo^ates to withdraw from the Charles- 
ton convention if it should refuse to make 
a congressional slave code a party dogma, 
expected that its ending would be the for- 
mation of a new confederacy embracing all 
the states except the six known as New 
England. They did not anticipate any 
" war for the Union." If they had not 
felt confident that every step would be a 



154 WASHINGTON VERSUS JEFFERSON 

peaceful one they would not have disturbed 
the harmony at Charleston. These schem- 
ers included experienced politicians from 
the North as well as from the South. Their 
scheme was ingenious and seemed likely to 
succeed. Its steps were to be : A division 
of the Democracy at Charleston ; the elec- 
tion of a Republican ; separate secession 
immediately thereafter by South Carolina, 
followed by Gulf States in single file ; Presi- 
dent Buchanan to be argued into a non- 
resisting attitude; newspapers at the North 
and Northern congressmen to assert the 
wrongfulness of coercion ; the Congress 
that would end with March 3 to be so 
managed that no coercive legislation should 
be attempted by it ; a Confederate govern- 
ment in the seceded states to be in working 
order before the inauguration of the new 
president at Washington ; the border slave 
states to act as buffers between the North 
and the new Confederacy. The Democratic 
party at the North was expected to maintain 
an attitude condemning coercion and con- 
forming to the doctrine of Mr. Buchanan's 
expected message. As the Republican ma- 
jorities in many of the states were not ex- 



WHY ELEVEN STATES SECEDED 155 

pected to be very large, and their strength 
in the new Congress not greatly in excess 
of the Democracy, the new administration, 
supported only by the Repubhcan party, 
would feel unequal to a war against the 
united South. The schemers believed that 
before midsummer it would recognize the 
independence of the Confederate States. 
That being done, the remaining slave states 
would one by one abandon the old Union 
and enter the new. Illinois and Indiana, 
loath to have a foreign power in control of 
the lower Mississippi and in possession of 
the opposite banks of the Ohio and of the 
upper Mississippi, and influenced by the 
large infusion of Southern blood in their 
own population, would first of the free 
states ask admission into the Southern 
Union. A glance at a map will teU how 
probable (in case the plan should be suc- 
cessful to this point) would be like action 
by California and Oregon, each of which 
gave to Breckinridge and Bell many more 
votes than it did to Lincoln. It was sup- 
posed that New Jersey and Pennsylvania, 
which had been Democratic steadily until 
1860, would follow suit. Then the situa- 



156 WASHINGTON VERSUS JEFFERSON 

tion of New York, Ohio, Michigan, Wiscon- 
sin, Iowa, and Minnesota would reinforce 
their democracies in their efforts to rejoin 
their brethren in a government which, in 
the absence of the six Yankee disturbers, 
would become a Democratic heaven. 

A careful reading of the newspapers of 
1860-61 (which reported debates in the con- 
vention at Montgomery during the framing 
of its Constitution), and some letters from 
Northern poHticians found by our army in 
Mississippi, satisfy me that the plan was 
about as I have outlined it. A prominent 
Ohio newspaper (which did not survive the 
war) in March, 1861, published the Confed- 
erate Constitution, with editorial comments 
pointing out its beauties as compared with 
that of 1787, and arguing that the inter- 
ests of Ohio, Indiana, and Illinois were 
with the South. In March, 1861, I greatly 
feared that this plan would be entirely suc- 
cessful. 

But the schemers, as mere politicians are 
apt to do, did not at all consider "the 
plain people." In 1854 the rising of " the 
plain people " of the North in anger be- 
cause of the repeal of " The Compromise of 



WHY ELEVEN STATES SECEDED 157 

1820 " ought to have warned them. Much 
as "the plain people" in their hearts prized 
that old law, which in their belief had made 
sure for free labor and free men 900,000 
square miles, their affection for it was weak- 
ness itself when compared with their devo- 
tion to that Union which had been cemented 
by the blood of their Revolutionary sires, 
and to the Constitution that was the best 
loved work of Washington. 

The firing on Sumter kindled in this peo- 
ple a blaze of patriotic wrath which burned 
up party and partisan feeling, roused the 
dormant love of country in all but case- 
hardened political managers, and for a time 
forced even those tough customers into 
quietude. 

Thus it came to pass that in April, 1861, 
the seceders beheld a nation rushing to 
arms to defend the Constitution, preserve 
the Union, and execute its laws. 



VI 

SECESSION AND THE ARMY 

Immediately after passing an ordinance 
of secession, the Virginia convention voted 
a call upon all army officers, citizens of that 
state, to resign their commissions in the 
national service and enter that of the state. 
Like appeals were made by the other seced- 
ing states. A little more than two thirds 
of those so called obeyed. In 1861 almost 
the whole of the Northern people regarded 
this obedience to the state as treason to the 
nation, accompanied by perjury. Time and 
information have satisfied great numbers 
that such an opinion was terribly unjust. 
Many of the officers who resigned the blue 
and donned the gray were men most scru- 
pulously honorable, devoted to duty, inca- 
pable of bad faith. Some of them surren- 
dered high position and assured promotion. 

Robert E. Lee had been made to know 
that he could stand next to Lieutenant-Gen- 



SECESSION AND THE ARMY 159 

eral Scott, and succeed him as commander- 
in-chief. Joseph E. Johnston was quarter- 
master-general, holding a hf e position with 
a good salary, and a home in Washingi:on. 
They both abandoned present rank and pay 
and future promotion, and were on duty in 
Eichmond within ten days. While I was a 
captain in the 18th United States Infantry, 
a brother of&cer told me of Joe Johnston's 
departure from Washington. In April, 
1861, my informant resided next door to 
the general. Being a young man ^ with 
many Southern friends, he accepted an invi- 
tation to a midday dinner at Alexandria. 
He soon learned that the object of the 
gathering was to induce guests to take com- 
missions from the Confederate States. Leav- 
ing the table, he returned to Washington 
alone and on foot. Midway he met General 
Johnston and family in a carriage. All 
stopped, and " Old Joe " told his young 
friend and neighbor of his resignation, and 
that he and his family were then en route 
for Richmond. The general could not con- 
trol his emotion. He shed tears as he spoke 
of the reo^ret with which he left " the old 
service." 



160 WASHINGTON VERSUS JEFFERSON 

I have already described how the South 
had been trained in the Jefferson-Tucker- 
/ Calhoun doctrine. Lee, as his letter to his 
son indicated, did not believe that a state 
had a constitutional right to secede. In his 
opinion the act of secession was " revolu- 
tion." But he did beheve that his para- 
mount allegiance was due to Virginia ; that 
her act of secession, although revolutionary, 
bound all Virginians and ended their con- 
nection with and duties to the national gov- 
ernment. This opinion was concurred in 
by many of the Southern officers ; and those 
who held it also held that to remain in the 
United States army would be treason to 
their state. 

Almost one third of the Southern officers 
remained faithful to the Constitution and 
the Union. This was no easy duty. It 
severed social and family ties. The loyal 
officer had to bear abuse and reproach from 
his kinsfolk, from the friends of his boy- 
hood, from aU in authority in his native 
state. He knew that he must fight against 
his own people, in many cases against his 
own brother ; in some instances a son 
against a father. Like instances occurred 
among the naval officers. 



SECESSION AND THE ARMY 161 

A Confederate who served on the staff 
of Admiral Buchanan when the Virginia, 
known to us as the Merrimac, sank the Cum- 
berland and burned the Congress, told me 
that five of the officers on the Virginia had 
near kinsmen in the Union service, himself 
being a relative of Lieutenant Morris of the 
Cumberland ; the father of one of the five 
and a brother of another were in the Union 
service. High in command in Dupont's 
fleet bombarding Hilton Head was Percival 
Drayton, of South Carolina, whose b^pther 
Thomas, as brigadier-general, commanded the 
forts on shore. When naval Lieutenant Lea 
was killed on our Harriet Lane in Galveston 
harbor in January, 1863, his father, as a 
Confederate major, was in the attack upon 
the Union garrison in the city. The ven- 
erable John J. Crittenden, of Kentucky, had 
a son serving as a major-general in each 
army. At the battle of Atlanta one son of 
that most earnest Unionist, the Rev. Dr. 
Robert J. Breckinridge, as a Union colonel, 
became the prisoner of his own brother, a 
Confederate cavalry brigade commander. 

A number of officers born and reared at 
the North, while stationed at the South on 



162 WASHINGTON VERSUS JEFFERSON 

duty, had married or established homes 
there. When war came, they were unwill- 
ing to fight against their new kinsfolk and 
neighbors, and therefore resigned, and took 
Confederate commissions. Roswell S. Rip- 
ley, an Ohioan, superintended the construc- 
tion of the first works around Sumter. 
William H. Chase, a Massachusetts West 
Pointer, and Ebenezer Farrand, a Pennsyl- 
vanian naval officer, jointly made the first 
demand upon Lieutenant Slemmer for the 
surrender of Fort Pickens. Walter H. Ste- 
vens, a New Yorker, laid out the fortified 
lines for the defense of Richmond, and was 
chief engineer of the army of Northern 
Virginia throughout the war. Martin L. 
Smith, another New Yorker, laid out the 
first fortified lines for the defense of Vicks- 
burg, and became a major-general. Wil- 
liam Steele, another New Yorker, was second 
in command to Sibley in his invasion of 
New Mexico, and succeeded to the chief 
command. J. K. Duncan, a Pennsylvanian 
born and Ohio bred, surrendered Forts St. 
Philip and Jackson after Farragut's fleet 
had gone up to New Orleans. J. C. Pem- 
berton, another Pennsylvanian, surrendered 



SECESSION AND THE ARMY 163 

Vicksburg. Bushrod Johnson, an Ohioan, 
was second in command to Buckner when 
he surrendered Fort Donnelson, and was 
a very persistent Confederate major-general 
until April, 1865. Franklin Gardner, a gen- 
eral born in New York and a cadet from 
Iowa, surrendered Port Hudson. S. G. 
French, a New Jersey man, failed to take 
Allatoona from our General Corse. Daniel 
Kuggles, a Massachusetts born brigadier- 
general, commanded at Fredericksburg in 
1861, and later in Mississippi. Francis A. 
Shoup, an Indianian, was a noted general of 
artillery in the Confederate army of Tennes- 
see. Danville Leadbetter, a Maine West 
Pointer, laid out the fortified Hues for Chat- 
tanooga, Knoxville, and Mobile in 1861-62. 
D. M. Frost, a New Yorker, surrendered 
Camp Jackson to our General Lyon. George 
G. Garner, another New Yorker, was Gen- 
eral Bragg's confidential staff officer. Most 
notable of all, Samuel Cooper, a New Yorker 
born and bred, married to a Virginia Ma- 
son, issued orders, as our adjutant-general, 
from Washington to Anderson for the de- 
fense of Sumter until in early March, 1861, 
and in later March and April, issued from 



164 WASHINGTON VERSUS JEFFERSON 

Montgomery the orders that caused Beau- 
regard to bombard that fort. This New 
Yorker served throughout the war as the 
senior general of the Confederate army, and 
did duty as its adjutant and inspector-gen- 
eral. 

The following list shows the number of 
army officers from each of the eleven seced- 
ing states who in 1861 remained in the na- 
tional service, and the number who entered 
the Confederate service : — 

Union. Confederate. 

Virginia 47 81 

North Carolina .... 8 24 

South Carolina .... 6 28 

Georgia 3 24 

Florida 4 6 

Alabama 2 15 

Mississippi 2 11 

Louisiana 3 4 

Texas 3 6 

Arkansas 1 5 

Tennessee 7 18 



86 222 



To the rank and file of the Union army 
the eleven seceded states contributed 86,205 
white troops and 93,441 colored soldiers; 



SECESSION AND THE ARMY 165 

the Indian Territory, 3530 Indian soldiers. 
Add to these the 260,327 white troops fur- 
nished by Delaware, Maryland, the District 
of Columbia, Kentucky, and Missouri, and 
we find that in the war for the Union, 
which necessarily ended slavery, the slave- 
holding portion of the United States fur- 
nished 346,532 white and 96,971 colored 
Union soldiers, aggregating 443,503. 

The four states, Virginia, North Carohna, 
Tennessee, and Arkansas, whose governors 
refused to furnish a man under the^rst 
call for 75,000 three months' volunteers, 
added to the national armies 74,605 white 
soldiers, the most of them for " three years 
or during the war ; " almost as many as the 
entire call of April 15, 1861. 

The North should always remember that 
the South contributed Farragut, Dupont, 
Goldsborough, Drayton, Winslow, Fairfax, 
and many others, able, gallant, and merito- 
rious of&cers, to the Union navy, and to the 
Union army, Scott, George H. Thomas, Ord, 
Newton, Emory, Philip St. George Cooke, 
Eobert Anderson, Hunter, Gibbon, Getty, 
Pleasonton, Torbert, Wood, Rosseau, and 
many others, able, gallant, and meritorious. 



166 WASHINGTON VERSUS JEFFERSON 

The South, for two reasons, ought to be 
resigned to their defeat in the war. First, 
the victory was not won by " the Yankees " 
alone. Second, to hold the field for four 
years against an entire North, full of men 
and resources, aided by about 350,000 
Southern white troops, was indisputable evi- 
dence of their own courage, endurance, and 
ability as soldiers. Yielding to such odds 
brought no dishonor. Moreover the nation 
had another immense advantage over the 
Confederacy : its President and commander- 
in-chief, Abraham Lincoln, in addition to 
very great executive abihty, was common- 
sense personified. 



vn 

WAR AND RECONSTRUCTION 

I HAVE followed the parties into the court 
of war. The purpose of my book does not 
include a report of the " trial " that began 
at Sumter and practically ended at Appo- 
mattox. But we cannot understan(^ the 
" reconstruction " that followed unless we 
first gain a knowledge of the " Rules of 
Practice " in the court of war, the laws that 
are therein appHed, and the nature of the 
judgments rendered by that court. The 
court of war is a tribunal of the last resort. 
While war is usually termed " cruel/' the 
laws of civihzed warfare, as recognized by 
Christendom, have among their main objects 
the saving of life, health, property, and ex- 
pense by making the war as short as possi- 
ble. To illustrate : A garrison which upon 
demand made by a sufficient force refuses to 
surrender an indefensible position, and is 
then taken by storm, is liable to be put to 



168 WASHINGTON VERSUS JEFFERSON 

the sword. By their refusal they compel 
the attacking party to suffer loss by death 
and wounds in capturing an indefensible 
post. Cromwell applied this law at Drog- 
heda. Two thousand men were put to the 
sword. A study of the remainder of his 
Irish campaigns justifies a belief that the 
lives of at least ten thousand Englishmen 
were saved because the example of Drog- 
heda caused the prompt surrender of all 
similarly placed garrisons. 

This principle of " saving " has given to 
the victor who completely subdues his foe 
the right to decide the limits of the '^ indem- 
nity for the past and security for the future" 
which he will require from his vanquished 
foe. The terrible nature of war, its im- 
mense expense, the losses in life, health, and 
property, all join in enforcing in favor of 
the successful party everything necessary to 
make another war with the defeated party 
improbable. So it has come to pass that 
when once a war is " on " between two 
belligerents, each has assumed the risk of 
losing all, each has a chance to gain all. If 
the war shall end by treaty, that will define 
their subsequent relations; but if it shall 



W^AR AND RECONSTRUCTION 169 

end by the complete defeat of one, the other 
capturing its armies and resources, those 
relations will be such as the victor shall de- 
termine. The victor is expected to use this 
power in accordance with the principles of 
modern Christian civilization. 

On the 19th day of April, 1861, President 
Lincoln proclaimed a blockade of all ports 
in the seceded states. This, in legal effect, 
recoofnized the Confederate States as a bel- 
ngerent. Translated into ordinary language, 
it said : "I cannot and do not recognize 
you as an independent nation or govern- 
ment ; I do agree that you are carrying on 
a war ; and that so long as that war shall 
continue I will treat your forces and people 
as I would treat the forces and people of 
any other nation at war with me; what your 
position and rights shall be after the war 
shall end must be controlled by the nature 
of that ending." 

Early in August, 1861, Congress, by al- 
most unanimous votes in both House and 
Senate, adopted a resolution drafted by the 
venerable John J. Crittenden, of Kentucky, 
reading : " That the present deplorable civil 
war has been forced upon the country by 



170 WASHINGTON VERSUS JEFFERSON 

the disunionists of the Southern States^ now 
in arms against the constitutional govern- 
ment, and in arms around the Capital ; that 
in this national emergency Congress, ban- 
ishing all feelings of mere passion or resent- 
ment, will recollect only its duty to the 
whole country ; that this war is not waged 
on their part in any spirit of oppression, or 
for any purpose of conquest or subjugation, 
or purpose of overthrowing or interfering 
with the rights or established institutions of 
those states, but to defend and maintain 
the supremacy of the Constitution and to 
preserve the Union, with all the dignity 
and equality and rights of the several states 
unimpaired ; and that as soon as these ob- 
jects are accomplished the war ought to 
cease." This resolution stated the purpose 
for which the national troops had been put 
in the field, and the object the national 
government wished to accomplish. Its pas- 
sage gave to those resisting the laws an 
opportunity to lay down their arms, and 
preserve in full the rights of their several 
states. In case they did not within a rea- 
sonable time accept the offer, in case they 
continued to resist, said resolution did not 



WAR AND RECONSTRUCTION 171 

give to them or to their states any claim 
upon the nation ; and it placed no incum- 
brance or limitation upon the rights which 
the result of the war mio^ht vest in the na- 
tion. If the fighting was to go on, the na- 
tion had full right to have both hands free ; 
and to use every right and power given by 
the laws of war. 

The Constitution had given to Congress 
" the right to declare war.'' This included 
the right to accept and wage war when be- 
gun by another belligerent. The Constitu- 
tion also gave to Congress power " to raise 
and support armies ; " " to provide and 
maintain a navy ; to make all laws which 
shall be necessary and proper for carrying 
into execution the foregoing powers, and 
all other powers vested by this Constitution 
in the government of the United States, or 
in any department thereof." It made the 
President " commander-in-chief of the army 
and navy of the United States and of the 
militia of the several states when called into 
the actual service of the United States ; " 
and ordered that " he shall take care that 
the laws be faithfully executed." 

The power granted to wage war included 



172 WASHINGTON VERSUS JEFFERSON 

full power to conduct it according to the 
laws of war, because the grant was not ac- 
companied by any limiting words. While 
the recognition of the Confederates as bel- 
hgerents gave them some advantages, it 
deprived them of others. Fob- example : 
from that moment none of them, during the 
war, was entitled to anything whatever as a 
constitutional right. From that moment 
they were all pubHc enemies so long as the 
war should continue. 

The laws of war give to each belligerent 
the right to cripple the enemy by the cap- 
ture of his forts, positions, towns, cities, and 
forces ; to capture or destroy his means of 
feeding, clothing, equipping, arming, and 
transporting his soldiers, and of construct- 
ing fortifications and the like. If that 
enemy's people own slaves, whom they may 
employ in raising crops, transporting sup- 
plies and munitions, building fortifications 
and the like, the other belligerent may take 
them from him by capture, or by inducing 
them to leave him. 

Some lawyers, finding no grant in the 
Constitution of power to free any slave, 
condemned President Lincoln's Proclama- 



WAR AND RECONSTRUCTION 173 

tion of Emancipation as an illegal, unau- 
thorized, unconstitutional act, and supposed 
they had " clinched their argument " when 
they added, "the Constitution remains the 
same in war as in peace." 

It is true the Constitution remained the 
same; but powers granted by it for use 
in war cannot be used until war is going 
on. Under the appHcation of the principle 
above stated, our commander-in-chief had full 
right to cause the slaves of our " belhgerent 
enemies" to leave their service by capture 
or offer of reward. He offered freedom. 
The offer was good, subject to the result of 
the war. As the nation triumphed, each 
slave who had accepted and acted on it was 
free for good and all. If the nation had 
been defeated, the masters might have re- 
claimed their slaves. 

So also some question was raised about 
the suspension of the writ of habeas corpus. 
The Constitution provided, " The privilege 
of the writ of habeas corpus shall not be 
suspended, unless when in cases of rebellion 
or invasion the pubhc safety may require 
it." When the war began, no act of Con- 
gress then in force defined by whom, when, 



174 WASHINGTON VERSUS JEFFERSON 

or under what circumstances, or for what 
time, the writ might be suspended. The 
Constitution did not say anything about it 
except in the words just quoted. It so hap- 
pened that we could look for precedents 
only in English history. No written consti- 
tution existed there. Magna carta of King 
John's day, and the Habeas Corpus Act 
of Charles the Second were both statutes. 
James the Second arbitrarily made arrests 
suspending, or, as he named it, " dispensing 
with " the act. To prevent such arbitrary 
exercise of royal prerogative (from the time 
of WiUiam the Third), Parliament has regu- 
lated this matter by its own Acts. This 
fact, and the placing of the clause in section 
9 (which is devoted to limitations of the 
powers of Congress), justify the conclusion 
that it was intended that Congress should 
regulate the suspension of the writ, and that 
therefore Congress might at any time make 
a law for that purpose. But the Constitu- 
tion unequivocally recognizes that a neces- 
sity for the suspension of the writ may 
occur "in cases of rebellion or invasion." 
Because Congress has failed to exercise its 
power to define when and how the suspen- 



WAR AND RECONSTRUCTION 175 

sion shall be made, must the President, 
whose oath pledged him " to preserve, pro- 
tect, and defend the Constitution of the 
United States to the best of his abiHty," 
allow that Constitution to be endangered or 
destroyed when the suspension of the great 
writ will avert the peril ? 

In England a king could not be im- 
peached for his improper suspension of the 
writ and arbitrary arrests. As kings had 
often made arbitrary and unnecessary arrests. 
Parliament prohibited any suspension M the 
writ not authorized by it. Our Constitution 
did not so word its prohibition ; it did not 
insert the words " except by Congress." 
Our President is impeachable. A construc- 
tion that Congress may at any time regulate 
by statute the suspension of the writ, but 
until it shall have so legislated, the Presi- 
dent, in the discharge of his high duty, may, 
" in cases of rebellion or invasion," suspend 
the writ if " the public safety requires it," 
will make the Constitution effective, without 
endangering liberty. The President will be 
restrained, by his liability to impeachment, 
as well as by his oath and conscience, from 
an improper exercise of this great power ; 



176 WASHINGTON VERSUS JEFFERSON 

and the representatives of the people, in 
Congress assembled, can at any time put 
their will into a law which he must obey. 
President Lincoln reported to Congress, as 
soon as it had organized, his suspension of 
the writ and his reasons therefor. The 
House, by a yea and nay vote of 108 to 26, 
on December 10, 1861, laid upon the table 
a resolution declaring that his action was a 
usurpation, and ordering a release of certain 
persons then under arrest by his order. 
This was practically an adoption of the con- 
struction I have just quoted. 

If President Johnson, as commander-in- 
chief of the national forces, had ratified 
and approved the miHtary convention agreed 
upon by Generals Sherman and Johnston 
on April 18, 1865, that instrument would 
have controlled the subsequent relations be- 
tween the seceding states and their people 
and the nation. He disapproved that con- 
vention. The nation, as victor by force of 
arms, gained possession of all the armies 
and resources of the Confederate govern- 
ment, and, under the laws of war, held 
power to R^ and determine those relations, 
limited only by the stipulation in the terms 



WAR AND RECONSTRUCTION 111 

of surrender ; to wit, that no officer or man 
who went to his home, and obeyed the laws 
there in force, and did no hostile act against 
the United States, should be disturbed ; and 
by the national Constitution. 

Under the power thus vested in Congress 
by the laws of war, it could, without any 
violation of the Constitution, decide that the 
land within the limits of the eleven states 
was " territory of the United States." For 
that territory it could make "all needful 
rules and regulations," in like manner as it 
had done for other territory from 1789 to 
1861. As already stated, the moment the 
said seceding states became belligerent, and 
were so acknowledged by the nation, none 
of said states had any " constitutional " 
rights as against the nation. As against 
the nation none of its belligerent enemies 
could have any rights, after the end of the 
war, except those made good by their armies, 
and established by treaty or military con- 
vention, and those which under the Consti- 
tution belonged to every person resident 
upon territory belonging to the nation. As 
no treaty or military convention (except the 
unratified Sherman- Johnston) recognized the 



178 WASHINGTON VERSUS JEFFERSON 

continued existence of any state organization 
in any seceding state, no such organization 
could of right claim further existence. 

The nation, if it chose, could consent 
to such further existence of each of said 
states. While any Confederate army re- 
mained in the field, President Johnson, as 
commander-in-chief, by convention fixing 
the terms on which that army would surren- 
der, might have stipulated the terms upon 
which each of the eleven states might con- 
tinue to be a state in the Union. Such a 
convention was within his power under the 
laws of war and the Constitution. While a 
Confederate army was in the field, the Presi- 
dent could by proclamation name the terms 
upon which he would accept its surrender 
(giving no rights contrary to the Constitu- 
tion) ; and if the enemy accepted said terms, 
and laid down their arms, his act as com- 
mander-in-chief would bind the nation. 
But after every Confederate army had laid 
down its arms, and no enemy was in the 
field with whom a miHtary convention could 
be made, or to whom a proclamation could 
be addressed. President Johnson could not 
by his single act bind the nation. 



WAR AND RECONSTRUCTION 179 

Under the laws of war, our commander- 
in-chief was charged with the duty of main- 
taining order in the territory taken by our 
arms until Congress should meet and legis- 
late therefor. So President Johnson's pro- 
visional governors were lawfully appointed 
by him, and with his approval each of them 
might have continued to act as a governor 
until a law of Congress directed otherwise. 

President Lincoln had, by proclamation, 
offered terms at divers times, notably on 
December 8, 1863. In the proclamati(^ of 
that day he was careful to state that the 
power to determine as to the admission of 
any state to representation in Congress be- 
longed to that body, and therefore the terms 
offered by him could not give a right to 
said representation. When the great Presi- 
dent died by the bullet of an assassin, three 
Confederate armies, commanded respectively 
by Johnston, Kirby Smith, and Taylor, were 
still in the field. But when President John- 
sou, on May 29, 1865, by proclamation of 
that date, stated terms for the reconstruc- 
tion of North Carolina, all Confederate 
armies and detached bodies of troops had 
surrendered; all fortifications, supplies, and 



180 WASHINGTON VERSUS JEFFERSON 

munitions of war were in possession of the 
national forces. Active war had ended. 
This great fact left in the President, as com- 
mander-in-chief, no power as to the territory 
and people of the eleven states except those 
necessary for the preservation of order 
therein until national legislation should de- 
termine the status of that territory, and the 
position and rights of its inhabitants. Of 
course as President he had power to pardon 
all acts of their inhabitants, and thereby 
relieve each one of them from prosecution 
in any national court under any national 
criminal law. 

The situation was unique. Few, if any, 
had sufficiently studied the laws of war to 
then fully understand the position. A few 
at the North claimed that the eleven states 
had been conquered by the nation, and that 
Congress could organize, within the land 
south of the Potomac and of the south lines 
of Kentucky and Missouri, territories or 
states with such boundaries as it might 
determine ; but although their claim was 
sound, they did not so state its foundations 
as to convince a majority at the North, or 
any considerable number at the South. 



WAR AND RECONSTRUCTION 181 

They did not base their claim upon the fact 
that the state organizations of the eleven 
states had so engaged in war against the 
nation as to be rightly acknowledged as 
" belligerent," and had thereby " wagered " 
their state's political existence upon the result 
of that war : they treated the passage of 
ordinances of secession as forming a part 
of their claim's foundation. As those ordi- 
nances were null and void (according to the 
national theory), their opponents naturally 
urged that the doing of a null and void act, 
which no statute made criminal, could not 
destroy a state's rights. A few at the South, 
like Lieutenant-General Longstreet, under- 
stood that the questions on which the South 
had differed with the nation had been sub- 
mitted to " trial by battle ; " that judgment 
had gone against the South, and under it, 
the nation (represented by Congress and the 
President — two thirds of both houses hav- 
ing power to override a veto) held full 
right to name the terms upon which the de- 
feated people could regain poHtical rights ; 
but they were looked upon as " traitors to 
the South," and could not aid its people 
with their wise counsel. 



182 WASHINGTON VERSUS JEFFERSON 

The Democratic party at the North and 
many conservative Republicans believed that 
each state, upon full compliance with the 
President's terms, became entitled to full 
representation in Congress. The President 
in many ways made public his opinion that 
both Senate and House were bound to admit 
members from those states who presented 
certificates in due form showing their elec- 
tion, and who could and would take the 
oath of office. 

Many people of all sections, professions, 
occupations, and parties — wholly or almost 
wholly ignorant of the laws of war and 
their effect upon the rights of victor and 
vanquished — were in grave doubt as to the 
question presented by " Reconstruction." 

The Southern people very naturally con- 
curred in the views held by the President, 
the Democratic party, and the more conser- 
vative Republicans. 

If the leading men in the eleven states 
had fully understood the laws of war and 
their effect upon the situation, they would 
have concurred with General Longstreet; 
they would have convinced their people that 
necessity was upon them ; that they ought 



WAR AND RECONSTRUCTION 183 

to ascertain as soon as possible what were 
the best terms the majority in Congress 
would consent to grant; and then unhesi- 
tatingly comply with those terms. 

Without intending to mislead, believing 
firmly that he was right, President Johnson, 
the Democratic party, and those Republicans 
who in 1866 attended the Philadelphia con- 
vention of " good feeling," did mislead the 
South, and much of e^dl to the South and 
to the nation was the result. 

In order to fairly judge the conduct ^f a 
people or of a person, effort should be made 
to " put yourself in their place," as nearly 
as a mental operation can enable one so 
to do. 

The Southern people were confronted by 
a problem that was practically unsolvable by 
persons trained, as they had been, amid the 
trammels pecuhar to a slaveholding commu- 
nity. The institution of slavery was "pe- 
culiar " in more than one sense. So many 
perils, actual or imaginary, beset it that 
" freedom of speech," or " freedom of the 
press," in the fullest meaning of the words, 
could not safely be permitted. To mention 
any of the evils or disadvantages of the 



184 WASHINGTON VERSUS JEFFERSON 

institution was supposed to be " incendiary." 
Few measures or questions relating to soci- 
ology or politics could be thoroughly dis- 
cussed without coming in contact with 
slaves and slavery. This narrowed the field 
for intercommunication of thoughts and 
opinions. Weeds, in the shape of preju- 
dices, grew rank. As a large majority of 
the people at .the North were known to be 
opposed to slavery, prejudice against them 
was general at the South. The Southern 
people were ignorant of the habits, etc., of 
Northern people, and because of prejudice 
against them did not care to learn about 
them, and did not respect or value Northern 
opinions. In the summer of 1865 it had 
become a necessity that the South should 
accede to terms and adopt measures that, 
in the opinion of the North, would furnish 
" indemnity for the past and security for the 
future." 

As slavery had been the effective cause of 
the civil war, all, except those who were 
mentally blind, knew that it must be pro- 
hibited in every state ; this every Johnson 
provisional government did. More than 
three and one-half millions of people of 



WAR AND RECONSTRUCTION 185 

color, in the eleven states, had suddenly 
been made free. The old relations between 
master and slave had been suddenly de- 
stroyed. A large, wholly uneducated popu- 
lation was thrown upon its own resources. 
In South Carolina and Mississippi they far 
outnumbered the whites ; in Florida and in 
Louisiana the two colors were almost equal 
in numbers ; in the other states the freed- 
men were largely represented. Although, 
as slaves, they had generally labored faith- 
fully for their masters' families, anA in- 
stances of outrage and serious disorder had 
been few, a general dread of danger from 
the freedmen was felt in all the eleven 
states. As the state slave codes were no 
longer applicable, the state legislatures were 
expected to make new laws for keeping the 
colored population under restraints deemed 
necessary for the safety of the whites in 
their persons and property. 

Mississippi put this expectation into her 
constitution in 1865, in the following 
words : — 

" The legislature shall provide by law for 
the protection and security of the persons 
and property of freedmen of the state, and 



186 WASHINGTON VERSUS JEFFERSON 

guard them and the state against any evils 
that may arise from their sudden emancipa- 
tion." 

The legislature enacted a law providing 
that every freedman, whose age was within 
years named in the statute, should, on or 
before a certain day in January in each 
year, make a contract with a responsible 
white person for the freedman's services for 
the entire year : each freedman who failed 
to so contract was to be bound by the 
sheriff to that responsible white person who 
would — at a public offering under a pub- 
lished notice — bid the largest sum for the 
services of the freedman for that current 
year. 

In discharge of his duty to keep order in 
the territory submitted to our arms until 
reconstruction should be completed, the 
President, by his generals, had stationed a 
small military force in each of the eleven 
states, under designated commanders. Gen- 
eral Thomas J. Wood, a Kentuckian by 
birth, held this command in Mississippi. In 
his report for the year 1866, he gave an ex- 
tended narrative of transactions in Missis- 
sippi affecting the freedmen, showing how 



WAR AND RECONSTRUCTION 187 

said statute was being appKed, and causing 
belief that under it the evils of slavery, 
without its good features, continued to exist 
in that state. 

While in some of the states negroes were 
liable to a limited capitation tax, at the dis- 
cretion of the legislature, none of the John- 
sonian constitutions required the opening or 
maintenance of any school for colored chil- 
dren ; and none of the eleven state legisla- 
tures in 1865 or 1866 passed any law for 
that purpose. % 

Under the act of March 3, 1865, a Freed- 
man's Bureau had been created, charged 
with supervision of the slaves who had been 
or should be emancipated. As a general 
rule, army of&cers stationed in the slave ter- 
ritory controlled by our armies were de- 
tailed as agents of this bureau, each acting 
within and for a specified district. Reports 
of these agents stated in what manner the 
whites of their respective districts treated 
the colored inhabitants. 

Congress also was confronted with a 
problem exceedingly difficult to solve. The 
majority desired to restore the Southern 
people to all the rights of citizens of the 



188 WASHINGTON VERSUS JEFFERSON 

republic upon the most generous terms that 
the necessary " security " for the national 
" future " would permit. Almost all were 
unwilling to change the names or boundaries 
of states with which so many cherished asso- 
ciations were connected, or to unnecessarily 
humiliate a proud people. National security 
for the future required, as more than two 
thirds of both houses thought : (a) An 
end of slavery, (b) Absolute safety for the 
creditors and pensioners of the nation, (c) 
Such a definition of national citizenship as 
would prevent dispute as to the obligations 
of each citizen to the nation, and as to his 
rights against each state, and enable the 
nation to protect its freedmen. (d) Power 
in Congress to so control the election or 
appointment to office of men who had sup- 
ported the war against the nation that no 
man about whose future loyalty to the na- 
tional government there was doubt, should 
be clothed with power to injure the nation. 
(e) Protection of the people of the eleven 
states from all liability for the unpaid debts 
of the Confederacy, or of any of its states, 
incurred in maintaining war against the 
nation, (f) Protection of nation, states, and 



WAR AND RECONSTRUCTION 189 

people from all claims of masters for the 
loss of any slave, (g) A readjustment of 
representation in the electoral college and in 
the House of Representatives, so that no 
part of the political power of slaveholding 
whites, who had for four years warred 
against the nation, should be based upon 
their former slaves, so long as no colored 
male adult in their states should be per- 
mitted to vote. 

Amongst thoughtful men at the North 
there was no material difference of opifton 
as to the necessity of these seven conditions 
for reconstruction. As to ^^ (d) " there was 
difference of opinion touching the definition 
of the power to be vested in Congress. 

What is now the Fourteenth Amendment 
to the Constitution was adopted by Congress 
on June 13, 1866, by almost three fourths 
of the members voting^. 

While the House, in committee of the 
whole, had this amendment before it, Mr. 
Raymond, of New York, moved to strike 
out section 3, which reads thus : — 

" Sec. 3. No person shall be a senator or 
representative in Congress, or elector of 
president or vice-president, or hold any 



190 WASHINGTON VERSUS JEFFERSON 

office civil or military under the United 
States or under any state, who having pre- 
viously taken an oath as a member of Con- 
gress, or as an officer of the United States, 
or as a member of any state legislature, or 
as an executive or judicial officer of any 
state, to support the Constitution of the 
United States, shall have engaged in insur- 
rection or rebellion against the same, or 
given aid or comfort to the enemies thereof; 
but Congress may by a vote of two thirds 
of each house remove such disability." 

The Republican members of the House 
divided almost equally on this motion. If 
the Democrats had voted for it, the section 
would have been stricken out. The Demo- 
cratic managers wished to defeat the entire 
amendment, and supposed that if said sec- 
tion should not be stricken out, Mr. Ray- 
mond and his wing of the RepubHcans 
would not vote for the amendment. In that 
case a two-thirds vote in its favor could not 
be had. But Raymond and those voting 
with him deemed the amendment essential 
to the safety of the nation, and to prevent 
its defeat they voted for it, and it was 
adopted. 



WAR AND RECONSTRUCTION 191 

Neither North nor South understood the 
other. To the North it seemed plain that 
officers and officials who had supported the 
South in the war had been guilty of conduct 
properly named perjury and treason. Those 
so thinking considered section 3 as dealing 
very mildly with the offenders. To the 
South it seemed that each man's first and 
paramount allegiance was due to his state ; 
that he owed no duty of any kind to the 
United States after his state had enacted an 
ordinance of secession ; that his state ^had 
full right and power to enact such an ordi- 
nance ; that it was his duty to obey his 
state, to support its action, and to maintain 
its cause in war in case it should become 
involved in war ; that any oath taken as an 
officer of the United States ceased to have 
any force or obligation so soon as, in obedi- 
ence to the call of his state, he resigned his 
United States office. It may be said of 
Southern men as truly as of the Northern, 
that each one acted conscientiously — in 
firm belief that he was doing his duty. Of 
course, there were men in both sections who 
lacked principle and patriotism, and were 
not influenced by ^Muty." Therefore to 



192 WASHINGTON VERSUS JEFFERSON 

the South section 3 seemed harsh, unde- 
served : they felt that they were in honor 
bound to refuse to ratify such a condemna- 
tion of men who had periled health and life 
in the defense of their states. 

The Republicans controlled the legisla- 
ture of Tennessee, — members elected by 
those Tennesseeans who had supported and 
fought for the nation. It ratified the Four- 
teenth Amendment on June 19, 1866. In 
July, 1866, Congress admitted Tennessee to 
full representation in both houses. 

This action was in effect a proclamation 
to the people of the ten states that the vic- 
tor in the war had decided to waive any 
demand for " indemnity for the past," and 
to require as " security for the future " no- 
thing more than the ratification of the Four- 
teenth Amendment, as a condition precedent 
to the admission to seats of senators and 
representatives from said ten states. 

If the leading men at the South had 
understood the situation : (a) That each state 
had made its continued political existence 
dependent upon the result of the war ; (b) 
that the manner in which the war had ended 
had vested in the national government the 



WAR AND RECONSTRUCTION 193 

power and right to name the terms upon 
which each state mio^ht continue to exist as a 
state in the Union ; (c) that the Fourteenth 
Amendment stated those terms ; (d) that 
the only matter within the control of the 
people of each state was to decide whether 
they would accept the terms and continue to 
be a state, or reject the terms and remain 
subject to such " rules and regulations " as 
Congress might provide for the " territory " 
taken possession of by their armies ; — they 
would also have understood that acceptlince 
of the terms fixed by the victor could not 
dishonor them; that they owed it to their 
states to secure a continuance of state Hfe. 

The legislature of Alabama omitted to 
ratify this amendment and adjourned. Gov- 
ernor Parsons wished to convene them in 
special session and to send in a message 
advising its ratification. President Johnson, 
as firm and persistent in his support of the 
claim of the ten states to full representation 
in Congress, as he had been in opposition 
to secession, used all the influence of the 
national executive against such ratification. 
All of the ten states refused to ratify. 

Subsequent events demonstrated that this 



194 WASHINGTON VERSUS JEFFERSON 

was unwise. The resources of the ten states 
had been exhausted by the four years of 
war. They were entirely destitute of the 
means for resistance to the demands of Con- 
gress. Under the then existing cir(3um- 
stances no tenable objection could be made 
to any part of the Fourteenth Amendment 
except said section 3. When that section 
is examined without passion or prejudice, it 
appears that the victor nation, after a bloody 
and costly war of four years, had decided to 
not prosecute criminally any of its own for- 
mer of&cials or citizens who had fought or 
supported the war against it, and to content 
itself with a reservation of the right and 
power to determine when, if ever, any of 
those who, before aiding in that war, had 
sworn to support the national Constitution, 
should be permitted to hold office. Can 
this be justly styled harsh or unreasonable ? 
If the ten states had ratified the Four- 
teenth Amendment in the summer and fall 
of 1866, they would have been readmitted 
to full representation in Congress in Decem- 
ber of that year ; the Reconstruction Act 
of March 2, 1867, would never have been 
passed ; their white population would have 



WAR AND RECONSTRUCTION 195 

controlled their state politics and legislation. 
No carpet-bag rule would have found place 
in their history. The era of Ku-Klux, of 
fraudulent elections, and their appurtenant 
crimes would never have been. The exten- 
sion of the voting franchise to the colored 
race would have awaited the influence of 
time ; of the progress of the race in educa- 
tion and business experience ; of the grow- 
ing conviction that the right to vote should 
be restricted only so far as the protection of 
life and property and pubHc order might 
require ; and of the natural wish of any 
state having many residents of that race to 
increase its political power by numbering 
them among the voters of the state and 
thereby adding them and their families to its 
representative population. 

That Congress intended no unreasonable 
continuance of the disqualification created 
by the Fourteenth Amendment was demon- 
strated by a most liberal use of its power 
to remove the disability. During the last 
twenty-five years, able sons of the South, 
who had fought in gray upon many battle- 
fields, or had held high positions in the 
Eichmond government and congress, have 



196 WASHINGTON VERSUS JEFFERSON 

been useful, influential, and honored mem- 
bers of the national Senate and House ; 
have sat on the supreme bench and in the 
Cabinet, and represented the nation at for- 
eign courts. I believe that the number 
whose disqualification Congress refused to 
remove was less than a score. 

That amendment, it seems to me, will in 
time command the approval of all lovers of 
order and of obedience to law. No man can 
now take the oath of ofB.ce without under- 
standing his obligation to his country, — to 
the nation. No national official can ever 
hereafter fancy that he is a representative of 
his state, looking after that state's interests 
in a " general agency " doing business under 
the name and style of the " United States." 

That men did so fancy in 1860 and 
1861 is shown by the parts played by Sec- 
retary of War Floyd and Assistant Secre- 
tary of State Trescott in attempting to sell 
national arms to South Carolina in Novem- 
ber and December, 1860 ; of Secretary of 
the Interior Thompson in appearing before 
the legislature of North ^Carolina as com- 
missioner for Mississippi to urge the seces- 
sion of " the old North State ; " of Justice 



WAR AND RECONSTRUCTION 197 

Campbell in acting as an agent of the Con- 
federacy while still occupying a seat upon 
the supreme bench and drawing a salary 
from the United States. No man can care- 
fully read the Fourteenth Amendment and 
fail to believe in the existence of the nation. 
By March, 1867, almost two full years 
had gone by since active war had ended. 
The reports of the military commanders and 
of the agents of the Freedmen's Bureau in 
the ten states had been printed and read by 
many outside of as well as in Congress. 
Large numbers of conservative men, whose 
opinions had been strongly against an ex- 
tension of the voting franchise to the col- 
ored race, who had earnestly hoped and 
wished to escape an experiment accompanied 
by so many perils, had become convinced 
that unless the right to vote should be given 
them when their states should be readmitted 
to representation in Congress, the condition 
of that race would become worse than it was 
while in slavery. They at length concurred 
with the more radical wing of the RepubH- 
can party in thinking that the nation owed 
a duty to the people enfranchised by it ; a 
duty to protect their rights of person and 



198 WASHINGTON VERSUS JEFFERSON 

property ; and that under the then existing 
circumstances this duty could not be per- 
formed unless it should arm them with the 
ballot. 

Thus the Reconstruction Act of March 2, 
1867, was voted for, not only by extreme 
Republicans, but by many conservative men 
of that party, and by Senator Reverdy John- 
son, Democrat, of Maryland. The Fif- 
teenth Amendment was the logical sequence 
of that act, but Congress moved so slowly, 
watching and studying the South, that this 
amendment was not adopted by Congress 
until the 26th day of February, 1869. The 
decisive votes of 145 ayes to 4A noes in the 
House, and 39 ayes to 13 noes in the Senate 
indicated the effect upon opinion at the 
North of the reported action of the people 
of the ten states, during the almost four 
years that had elapsed since the surrender 
at Appomattox. On March 30, 1870, this 
amendment became parcel of the Constitu- 
tion. On July 15, 1870, Georgia, the last 
state to be finally accorded full representa- 
tion in Congress, was restored as a state in 
the Union, and Washington's prediction was 
finally fulfilled. The Jefferson doctrine of 



WAR AND RECONSTRUCTION 199 

1798, " pertinaciously " applied, had pro- 
duced an attempt to dissolve the Union, and 
complete coercion had followed. 

In the last years of his life " The Father 
of his Country " was troubled by fears for 
that country's future ; and by calling upon 
the eloquent Henry to combat the political 
heresy of the Kentucky resolution, he hoped 
to convert Virginia to the true constitu- 
tional faith. " Man proposes, God dis- 
poses." It would seem that it was the 
Divine plan for the progress of man to Visit 
upon North and South war and destruction, 
because by both had been continued (if not 
originated) the offense of slavery ; and yet 
in the end to bless them both by the timely 
removal of that institution and its perils. If 
the national government, in 1861, had re- 
cognized the seceding states and admitted 
the right of any state to secede at its own 
pleasure, it would have ceased to be a na- 
tional government ; the states would again 
stand to each other substantially as they did 
during the years from 1783 to 1789. Every 
reader of Professor John Fiske's " The Crit- 
ical Period of American History " will un- 
derstand that a voluntary consent to such a 



200 WASHINGTON VERSUS JEFFERSON 

practical destruction of the Constitution was 
impossible. The war on the part of the 
nation was for self-preservation, not for con- 
quest. It was terrible ; its exj)enses of life, 
money, and property were immense. That 
expenditure prevented the establishment in 
North America of an indefinite number of 
rival nationalities of our race. At first 
there might have been only two. Along a 
frontier of at least two thousand miles, the 
slaves of the South could cross a stream or 
an imaginary fine, and be free. No non- 
slaveholding nation, able to defend itself, 
ever surrendered the escaped slave of an- 
other. Such escapes would inevitably result 
in questions, difficulties, and possible wars. 
The disputes between tide water and trans- 
Alleghany Virginia, which primarily pro- 
moted the creation of West Virginia, indi- 
cate how probable like disputes in other 
states and parts of states would be. When 
once each state knew that the door was 
open, and its power to go out unquestioned, 
how long would Mississippi Valley states 
remain with Virginia, the Carolinas, or Geor- 
gia; or with New England, New York, 
and Pennsylvania ? or Rocky Mountain or 



WAR AND RECONSTRUCTION 201 

Pacific states with any Eastern or Central ? 
All persons who, in early 1861, read British 
editorials upon President Buchanan's mes- 
sage and the successive secessions, will re- 
member the satisfaction with which the fall- 
ing in pieces of the great American Republic 
was expected. 

I believe that the verdict of posterity 
will be that the Union armies fought, not 
only for the nation and the North, but also 
for the true welfare of the South, and for 
human progress and elevation. I ask my 
readers to thoughtfully consider the follow- 
ing words of President Lincoln spoken at 
Gettysburg, November 19, 1863 : — 

'' Fourscore and seven years ago, our 
fathers brought forth on this continent a 
new nation, conceived in Hberty, and dedi- 
cated to the proposition that all men are 
created equal. Now we are engaged in a 
great civil war testing whether that nation, 
or any nation so conceived and so dedicated, 
can long endure. We are met on a great 
battlefield of that war. We have come to 
dedicate a portion of that field as a final 
resting-place for those who here gave their 
lives that that nation might live. The brave 



202 WASHINGTON VERSUS JEFFERSON 

meiij living and dead, who struggled here, 
have consecrated it far above our poor power 
to add or detract. The world will little 
note, nor long remember, what we say here, 
but it can never forget what they did here. 
... It is rather for us to be here dedicated 
to the great task remaining before us, — 
that from these honored dead we take in- 
creased devotion to that cause for which they 
gave the last full measure of devotion ; that 
we here highly resolve that these dead shall 
not have died in vain ; that this nation^ 
under God, shall have a new birth of free- 
dom, and that government of the people, by 
the people, for the people, shall not perish 
from the earth." 



INDEX 



INDEX 



Abolitionism, voting strengtli 
of, 69. 

Adams, John QuiBcy, held the 
Alissouri Compromise consti- 
tutional, 58. 

Arkansas, voted for union in 
1861, 118 ; seceded because of 
belief in Jefferson's resolu- 
tions, 152, 153. 

Atchison, D. R., his attempts 
to extend slavery, 71, 73. 

Benton, Thomas H., opinions 
on Compromises of 1820 and 
1850, 73. 

Buchanan, James, effect of 
Davis's argument, 137-140. 

Calhoun, John C, framed 

Texas joint resolution, 5 ; 

held !Mlssouii Compromise 

constitutional, 57, 58. 
Catron, Justice, opinions, 48, 83. 
Common Sense, suggestions to 

Senator Davis, 106-121. 
Compromise of 1850, 5 ; 55-57 ; 

65-67; 89. 
Congress, organized Colorado, 

Dakota, and Xevada, 12 ; 79 ; 

140 ; proposed amendment to 
Constitution in 18(31, 13 ; 140, 

141 ; power to legislate for 
territories, 48, 49 ; to prevent 
increase of slavery, 51-53 ; 
never decided to divide terri- 
tory equally or equitably be- 
tween freedom and slavery, 5, 
55-60 ; prohibits slavery, 84- 
86 ; its action in 1860-61, 140 ; 
•war powers, 171-173 ; 177- 
180. 

Convention of 1787, resolved to 
frame a national government, 



3, 20 ; to make the national 
judiciary the arbiter, 3 ; 
vested sovereignty in the na- 
tion, 3 ; also power to pre- 
vent increase of slavery, 3, 
50-52. 

Court, the Supreme, decided 
that sovereignty is in the na- 
tion, not in any state, 4 ; re- 
versed Wisconsin cases, 12 ; 
other decisions, 28, 41-43 ; 45, 
48, 95, 98, 13:3-136. % 

Crawford, W. H., deemed Mis- 
souri Compromise constitu- 
tional, 58. 

Crittenden Resohition of Au- 
gust, 1861, 169, 170. 

Davis, Jefferson, his character^ 
81 ; slave code resolutions, 

86, 87 ; 91, 92 ; 97-102 ; their 
effect on elections. 102, 103 ; 
Common Sense and Davis, 

87, 88 ; 106-121 ; his argu- 
ment in Cabinet, 136-140. 

Delaware voted for imion in 

November, 1860, 147. 
Democratic Conventions, of 

1852, 5 ; of 1860, 9, 98-102 ; 

of 1856, 90. 
Dred Scott Case, the, 8 ; 45- 

48 ; 81-84. 

Federalist, The, on the judici- 
ary article, 27. 

Fugitive Slave Clarrse, the, 44 ; 
legislation under it, 122-127 ; 
action under it, 127. 

Georgia, deed ceding Alabama 
and Mississippi, 5, 54 ; disre- 
gard of Supreme Court, 133- 
136. 



206 



INDEX 



Habeas Corpus, Suspension of, 
173-176. 

Henry, Patrick, opposed seces- 
sion theory, 2, 39. 



Jackson, Andrew, approyed 
the Wisconsin Act, 85. 

Jefferson, Thomas, his Ken- 
tucky resolutions, 2, 16 ; com- 
ment on, 23, 24 ; his theory, 
37, 38 ; its final effect, 198, 
199 ; he approved the Michi- 
gan and Illinois Acts, 85. 

Johnson, Andrew, his powers 
and policy, 176. 

Johnston, J. E., 159. 

Judiciary, the national, the 
arbiter, 24, 25, 27. 

Kansas, struggle about slavery, 

73-78 ; 87, 88. 
Kentucky resolutions, 17 ; 150- 

153. 
Kentucky voted for Union in 

June and August, 1861, 147. 

Lee, R. E., letter to his son, 
40 ; his resignation, 158. 

Lincoln, Abraham, speech at 
Jonesboro in 1858, 9, 104, 
105 ; his common sense, 166 ; 
proclamation of Dec. 8, 1863, 
179 ; Gettysburg speech, 201, 
202. 

Louisiana, act organizing, 45; 
votes on tariff laws, 146, 147. 

Madison, James, on coercion, 
28, 36, 138; modifies Ken- 
tucky resolutions, 39 ; disa- 
vows Calhoun theory, 39. 

Marshall, John, decisions, 41- 
42 ; 45. 

Maryland voted for Union in 
1861, 147. 

Mason, George, condemns slav- 
ery, 50, 51. 

Mexican cession and slavery, 
61-67. 

Mississippi, legislation in 1865, 
185, 186. 

Missouri voted for Union in 
February, 1861, 147. 



Missouri Compromise, prohib- 
its slavery, 5 ; not an iso- 
thermal line, 5 ; repealed, 7 ; 
its adoption, 57-60 ; effect of 
repeal, 69-73. 

Monroe, James, approved the 
Missouri Compromise, 58. 

National Intelligencer, The, on 
Personal Liberty BiUs, 129, 
130. 

Nelson, Justice, opinions, 47, 
83. 

North Carolina, deed ceding 
Tennessee, 5, 54; voted for 
Union in 1861, 148 ; seceded 
because of belief in Jeffer- 
son's resolutions, 152, 153. 

Obiter Dicta, in Dred Seott 

Case, 47-49 ; 81-84. 

Personal Liberty Bills, 10 ; 
129-136 ; 141. 

Polk, James K., approved Ore- 
gon and Minnesota Bills, 85. 

Preamble to the Constitution, 
21. 

Preface to Articles of Confed- 
eration, 21. 

Reconstruction, Northern 

claims, 180-192 ; terms de- 
cided upon, 188-192; com- 
ments on, 194-198. 



Secession Plot, The, 149 ; 153- 
157. 

Senators not ambassadors, 
33-35. 

Situation, the, when secession 
began, 106-121; 140-149.^ 

Slavery, prohibitory legisla- 
tion, 4 ; 5 ; 57-59 ; 84, 85 ; 
112 ; a local institution, 53 ; 
census facts, 78, 79 ; 88 ; 142 ; 
its limited validity, 92-96._ 

Slaves, number in all territo- 
ries in 1860, 78, 79 ; 88 ; 142. 

South, the, two thirds voted 
for Union in 1860-1861, 147, 
148 ; views on reconstruc- 
tion, 70 ; 181-193. 

South Carolina, disregard of 



INDEX 



207 



Supreme Court, 133 - 136 ; 
votes on tarifE laws, li6, 147. 

Sovereignty vested in the na- 
tion, 29-33. 

State, clause reserving sov- 
ereignty omitted from Con- 
stitution, 3 ; 26 ; sovereign 
powers denied to it, 31-33 ; 
ceded to nation, 29-31 ; lias 
no power over its senators 
and congressmen, 34, 35. 

Stephens, A. H., his opinions, 
33; 52. 

Tariff laws, votes on, 146, 147. 

Taylor, Zaehary, his policy, 62. 

Tennessee, voted for Union in 
1861, 148 ; seceded because of 
belief in JefPerson's resolu- 
tions, 152, 153 ; readmitted, 
192. 

Texas joint resolution, 61. 

Thomas, George H., his loy- 
alty, 39, 40. 

Thurman, Allen G., speech for 
the Wilmot Proviso, 63, 64. 



Tucker's Blaekstone, 150-152. 
Tyler, John, approved Texas 
joint resolution, 85. 

Virginia, voted for Union in 
1861, 148 ; seceded because of 
behef in Jefferson's resolu- 
tions, 152, 153. 

War for the Union, its neces- 
sity, 199, 200 ; its result good 
for South as well as North, 
199-202. 

War, the laws of, 167. 

Washington, George, letters 
against Jefferson's resolu- 
tions, 2 ; ■ 18 ; his construc- 
tion of the Constitution, 36, 
37 ; his prediction fulfilled, 
198, 199. 

Webster, Daniel, speech March 
7,^ 1850, 65-67. 

Whig Convention in 18R2, 5. 

Wirt, William, held that the 
Missouri Compromise was 
constitutional, 58. 



CAMBRIDGE, MASSACHUSETTS, U. S. A. 
ELECTROTYPED AND PRINTED BY 
. H. O. HOUGHTON AND CO. 



\ 



